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a brief primer
by Nathaniel Burney
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a brief primer
by Nathaniel Burney
The Burney Law Firm, LLC 747 Third Ave., Fl. 32 New York, NY 10017
Nothing in this document constitutes legal advice.
1st Digital Edition
Document Copyright © 2011 - MicroBook Text Copyright © 2007-2011 - Nathaniel Burney
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International Law – a brief primer Nathaniel Burney TABLE OF CONTENTS
I. The Sources of International Law ............................................................................................. 1 Customary International Law ...................................................................................................... 1 Treaties, General Principles, and Other Sources ......................................................................... 5 Judicial/Subsidiary Sources of International Law ....................................................................... 6 II. The Relationship Between International and Domestic Law ................................................ 8 Domestic Law vs. International Law........................................................................................... 8 Customary Law ........................................................................................................................... 9 Treaty Law ................................................................................................................................ 10 III. Executive Agreements ........................................................................................................... 14 In General .................................................................................................................................. 14 What the President Can Do ....................................................................................................... 15 Purely Executive Powers vs. Shared Powers............................................................................. 15 IV. States ....................................................................................................................................... 18 Definition................................................................................................................................... 18 Recognition of States................................................................................................................. 19 Recognition of Governments..................................................................................................... 22 Self Determination..................................................................................................................... 26 Sovereignty Over Land, Sea and Air......................................................................................... 26 V. Non-State Entities: Organizations, Corporations and Individuals ..................................... 31 International Organizations ....................................................................................................... 31 Individuals and Nationality ....................................................................................................... 31 Corporations .............................................................................................................................. 36 VI. Jurisdiction ............................................................................................................................. 37 General Principles ..................................................................................................................... 37 Prescriptive Jurisdiction ....................................................................................................... 37 Enforcement Jurisdiction...................................................................................................... 44 Conflicts of Jurisdiction ............................................................................................................ 46 Extradition ................................................................................................................................. 48 VII. Immunity from Jurisdiction ................................................................................................ 50 Sovereign Immunity .................................................................................................................. 50 The Act of State Doctrine.......................................................................................................... 55 Immunity of State Representatives............................................................................................ 57 VIII. The Law of the Sea.............................................................................................................. 62 Introduction ............................................................................................................................... 62 Territorial Rights ....................................................................................................................... 63 Transit Passage, Straits and Archipelagos ................................................................................. 71
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............................................ 83 State Involvement............................. 93 Suspension of Human Rights ........................................................................................com/international_law_primer.................................................................................... 78 Amendments and Modifications................................. 116 Collective Use of Force .................S.......................................................... 117 "Lawfare" .......................... 112 Intervention to Effect Changes ................................................................................................................................................................................................................................................................................................. 78 Interpretation of Agreements..................................... International Agreements ................................................................................................... International Environmental Law...... 112 Humanitarian Intervention.................................................................................................................. 82 Basics ................................................................... 73 X...................... 79 Invalidity of Treaties ................................................................................................. 86 Substantive Bases of Responsibility................................................................................................................ Settling Disputes Peacefully............................................................ 115 War Powers Resolution .......................................................... 79 XI.................................................................................. 112 Intervention Against Terrorism .......... 95 XII........................................................................................................ 76 Making a Treaty ....................................................................... 88 Fundamental Human Rights Violations.................................................................................................. 117 MicroBook Special Reprint Reprinted with Permission Source Document > http://www..................................... 106 Introduction .............. 93 What to Do When an American is Tortured by a Foreign Government ................. 96 Settling Disputes Peacefully............................................. but not in UN Charter.... 113 Example: Nicaragua .................................................. Mechanisms Related to Human Rights .. 109 Self Defense ......................................N............................ 87 Substantive Human Rights ......................... The Use of Force...........................................htm < Source Document .......................... 74 Nonbinding International Documents.............. Human Rights............................................................................................. 111 Intervention ......................................................................... 96 Dispute Settlement through the U.............................................................................................................................................................................................................burneylawfirm................................................................................................................................................................................................................................................................ 74 The Law of Treaties...................................................................................................................................................................................................................................... 100 Formal Adjudication: The International Court of Justice .................................................................................................................................................................................................................................... 112 Intervention in Civil Wars ............................................................................ 95 Duplication of Claims............................................................................................................................................................................................................. 101 XIII.......................................................................................................................................................................................... 76 Capacity to Enter Into Treaties............ 113 Necessity and Proportionality........................................ 92 Procedure................................................ 96 The First Rule of the Use of Force Is Not to Use It.................................................................................................. 106 Analysis for All Use-of-Force Issues ................. 98 International Arbitration ..... 76 Observance of Agreements............................ 109 Uses of Force Permitted by Customary International Law............................................................................................................... and other international organizations ..................................... 82 Some U..................................International Law – a brief primer Nathaniel Burney IX...................................................................................
there is such a thing as estoppel. Supreme Court decisions). a. What you do becomes precedent. look to treaties and other bilateral agreements to which sovereigns are signatories. Look at them in order. even though you didn’t actually create a legal document. look to multinational agreements among sovereigns. CUSTOMARY INTERNATIONAL LAW Customary international law is something done as a general practice — not because it is expedient or convenient. Third. which govern the issue.burneylawfirm. Are dissenting and non-participating states bound by custom? Do regional and special customs involve different requirements? May a special custom (one that conflicts with general custom) bind a state that has not supported it? What evidence is required for opinio juris. Cases are important.com/international_law_primer. Element 2: States do it out of a sense of legal obligation. Any order or document issued by any government entity can be used as precedent! The Paquete Habana case relied on edicts and agreements as far back as 1403. and which govern the issue. to find the law. First. accepted as if they were law. Fourth. Even when no binding document exists. Your actions have a legal effect. look to subsidiary determinations of law (e. Element 1: General practice. ask the following: What constitutes state practice? How much practice is required? How much consistency is required? Inconsistent state practices can be ignored if you look at the big trend. but because considered law.g. the requirement that practice be accepted as law? May treaties be invoked as evidence of customary law? May they create it? 1 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. b.htm < Source Document . White House memos can be just as precedental as a treaty! Whenever considering whether something is custom.. but because it is considered law. General practices of states. They are used in real life. look to general principles common to mature legal systems. Second. Followed not out of habit or expediency. out of a sense of legal requirement (opinio juris).International Law – a brief primer Nathaniel Burney I. THE SOURCES OF INTERNATIONAL LAW Article 38 of the Statute of the International Court of Justice defines the sources of international law. Fifth. look to customary international law.
of course. The U. These are frequently classified.S. (As a result. spies etc. Be specific which ones you are referring to.) Asylum Case (1950) Under the Vienna Convention on Diplomatic Relations. District Court said that the Navy had acted within its authority. though. The U. (There’s lots of tense chases here in DC for that reason.. during the Spanish-American war. and their crews. when you get inside the walls of an embassy. A deposed Peruvian political leader sought asylum in the Colombian embassy in Peru. and you’re out of luck. Ct.International Law – a brief primer Nathaniel Burney Is there a normative hierarchy in customary law? Would declarations of law adopted without dissent by the UN General Assembly constitute presumptive evidence of accepted international law. Peru claimed it had no legal obligation. there are several Vienna conventions. and wanted to transport him through Peru to Colombia unscathed. their cargoes. The Paquete Habana (1900) A case about the Rules of Engagement. There was no bilateral agreement between Peru and Colombia. every US ROE since then has said to leave fishing boats alone if involved in the peaceful act of fishing [but not if using fish to camouflage silkworm missiles. as a matter of law. Coastal fishing vessels. you are inviolable.S. Lots of conventions of all sorts. because others cannot go in and get you without that embassy country’s permission. The Colombians granted asylum.burneylawfirm. holding that “international law is part of out law. One inch outside. regardless of actual state practice? Would the adoption of recommended standards of conduct by the General Assembly or another representative international assembly give rise to customary law if they are generally followed by states? Those countries with the ability to do it have more influence than others when it comes to creating custom. going into customary international law. however]. S. Rules of Engagement — Before the military engages in an action. The Paquete Habana and the Lola were Cuban fishing boats that were seized by the U.com/international_law_primer.S. are exempt from capture as prizes of war. Colombia relied on a treaty that Peru had not signed on to.S. is frequently in this position.” This established rule of international law had existed to protect peaceful fishermen from wartime seizures.htm < Source Document . 2 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. and China doesn’t let people within a mile of the US embassy. The U. under Federal statute. agreed. it is governed by standing instructions on what they can and cannot do.) Note. The Cubans argued that customary international law prohibited us from seizing the ships.
but your dissension must be active and persistent. At the very least. Don’t sit on your hands. sail right up to the 12-mile limit when countries try to claim more sea territory. Note . you’re a sovereign. It can also mean we won’t repatriate you to a country you fled for political/humanitarian reasons. unless it violates a peremptory norm. Nobody is going to tell you to do it. related to the Anglo-Saxon concepts of adverse possession or easement. Under it. Is there a rule of customary international law binding on Colombia and Peru? The ICJ said cases went both ways. 3 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. the custom was only for political expediency — it was not done out of a sense of legal obligation. (Not. You do have the option of dissenting while international law is being formed. so that it would have the status of a nonconsenting state. and protest.International Law – a brief primer Nathaniel Burney There was no multinational agreement binding on Peru. However. not by contract law. states can do anything they want to agree to. same as Peru here).) cannot be repudiated. domestic-law contexts. Only if you repeatedly repudiate it do you earn the status of a nonconsenting state.S. and the right of passage only applied to civil activities. A multinational agreement can still be binding as customary international law. you acquiesce.com/international_law_primer.“Asylum” has different meanings in international law contexts and U. States can do whatever they want. Mere uniformity of external regularity never justifies a conclusion of normativity. The major seafaring nations. The inductive reasoning that establishes the existence of custom is a tied reasoning: the matter is not only one of counting the observed regularities. India asserted the rights that England had enjoyed. Make your protest. If you don’t take the measures to assert your rights. slavery.burneylawfirm. genocide. if you choose.htm < Source Document . and the mere practices often dictated by consideration of expediency and therefore devoid of definite legal meaning. etc. Governments attach importance to distinguishing between custom by which they hold themselves bound. and India wouldn’t let the Portuguese move their military and ammo back and forth to the enclaves. You may even create legal precedent for a customary international law contrary to your interests. by the way. Colombia pointed to numerous and frequent examples where American countries allowed safe transport like this. they object to those countries’ claims. but by the Vienna Convention on Treaty Law.) Portugal had territory within India. Portugal v. Certain fundamental rules. but that means you’d better do so or else you may lose the right. You have the ability to assert your rights. Peru had even repeatedly repudiated the Montevideo agreement. International agreements are governed. but of weighing them in terms of social ends deemed desirable. It can mean leaving people alone who are under the protection of another country’s embassy (something the US refuses to do. They are peremptory norms. for example. apartheid. even if you didn’t sign on. however (such as freedom from torture.Customary relations between nations becoming binding. India (1960) .
7 of the UN Charter. Also. a customary norm.S. the treaty permitted reservations. There are 3 ways the treaty could have become binding customary international law: The treaty re-stated a pre-existing custom. not because they felt it was a binding legal obligation. a new norm of international law binding on everyone. (Geneva Convention of 1958. only a few countries were using this rule. Also. and even then they had resorted to equidistance out of frustration. Customary law may be a source of international law in international disputes. It is separate from treaty law and convention law. Germany had actually signed an agreement to that effect at a party.burneylawfirm. Also. (2) enforcement under Ch. U. The court held that it is no longer okay to settle disputes with force.International Law – a brief primer Nathaniel Burney OPINIO JURIS . That wasn’t such a good argument. since everyone else was doing it.Use of force can be justified three ways: (1) self-defense. Nicaragua v. Also.htm < Source Document . or (3) pre-UN rules of necessity & proportionality [the US and a few other countries assert this third principle from time to time]. so the Dutch/Danish method of equidistant lines would have reduced German sea control drastically. That was hardly acceptance of a norm-creating law. Note . The treaty’s rule crystallized customary law that had been in the process of formation. and many countries had made their reservations known.com/international_law_primer. but when it sobered up it decided not to ratify it. so it wasn’t binding on Germany until it was ratified. The treaty’s rule generated a new customary law following its adoption. but the presumption is that it isn’t]. The agreement didn’t say it was binding upon being signed. because Germany had repudiated the treaty. it was not apparent that the provision was a norm-creating provision.North Sea Continental Shelf Cases (1969) Germany’s coastline was concave. It was a secondary provision only. The ICJ therefore held that there was no customary international law for the Dutch/Danish position. Holland & Denmark argued that this treaty had generated a new customary law. as it must be applied even if the countries are parties to a treaty. there had been very little time since the treaty [customary international law can be created in a short time. Back to Table of Contents 4 MicroBook Special Reprint Reprinted with Permission Source Document > http://www.) That didn’t mean Holland & Denmark couldn’t argue that it was binding as customary international law. (1986).
there is an obligation to perform in good faith.burneylawfirm. presuming there is a government that works. Under Article 38. Belgium was prevented from suing France for breaching its agreement not to build a dam. reparation. and they also fired at British ships from shore batteries. Belgium (1937). AND OTHER SOURCES OF INTERNATIONAL LAW Treaties: International agreements are governed. Especially if you are foolhardy enough to attach a map to an agreement (dangerous). Albania (1949).International Law – a brief primer Nathaniel Burney TREATIES. Never agree to a document when there is something in it you don’t understand. not by contract law. Failing to notify violates elementary considerations of humanity. they can deal with it. Meuse case. States are grown-ups. All mature legal systems have equitable principles. Netherlands v. the most xenophobic country ever. Estoppel is always out there to slam you. but it is better to be right & useful than to be liked & dangerously incompetent. Then it didn’t tell anyone. General Principles of Law and Equity.com/international_law_primer. The ICJ held that elementary considerations of humanity are binding as customary international law. b. etc. Problems are settled between the parties — apology. unless it violates a peremptory norm. a. Clean hands . But. when Belgium had breached the same agreement. There are plenty of mechanisms to work out violations of international obligations. states can do anything they want to agree to. Many countries don’t have governments that work.htm < Source Document . with a pillbox every half mile in anticipation of an invasion that has never come. laying mines require you to tell those who sail there. Some British ships got blown up. one country can make an agreement with another government. littered the Strait of Corfu with mines.you can’t take advantage of your own wrongdoing. and Considerations of Humanity. Back to Table of Contents 5 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. GENERAL PRINCIPLES. Corfu Channel case. equity is part of international law. Two big ones: Considerations of Equity. There aren’t that many of these: Promises are binding . Under it. It’s nice to be polite. Albania. but by the Vienna Convention on Treaty Law. Therefore. United Kingdom v.
and so far as the expectation is gradually justified by national practice. abstentions from South Africa. And yet. concluded that if torture violated the law of nations. says that ICJ decisions are binding only on the parties to the dispute. however. These are never enough by themselves . The 1975 Declaration on the Protection of All Persons from Torture. unlike civil law countries. A Paraguayan official tortured to death a 17-year-old Paraguayan boy. Here in the U. Pena-Irala (2d Cir. All of them say that torture is a human rights violation. a declaration may by custom become recognized as laying down rules binding on all countries. and arguably one of the greatest documents of all time (unanimous. ICJ cases are cited over and over as representing international law. Article 59 of the Statute of the ICJ. however. but no more. It is not law just because the ICJ says so in one case. for a tort in violation of the “law of nations” (international law). arbitration tribunals and “municipal courts” (such as the US S. nevertheless. but because it was a well-reasoned case that countries keep pointing to as evidence of international law.htm < Source Document . Foreign law journals (not U. UN General Assembly Declarations & Resolutions. Often. law-school journals) and the U. one of the first acts of the UN. They are still of some use.S.burneylawfirm.com/international_law_primer.We also have the Torture Victim Protection Act. the 2d Circuit. Restatement of International Law are often cited.S. however.. which also protects Americans. Yugoslavia. USSR and other SSRs. Now it is 6 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. The kid’s father and sister sued in U. To see if torture violates international law. It may come to be regarded as law. Not because of stare decisis. under which only aliens may sue. The Universal Declaration of Human Rights. however. The District Court dismissed the case for lack of jurisdiction. Ct. torture was just good police work.) are also cited as sources of international law. Note . and alien could sue another alien in U. The 1789 Alien Tort Claims Act: US enforcement of foreign violations of international law Filartiga v. A Declaration creates an expectation of adherence. courts and collect damages. we use stare decisis. 1980). and Saudi Arabia).they are only academic opinions of what the law is. (Time was. and which has been embellished over time.S. because of the boy’s father’s political beliefs.S.International Law – a brief primer Nathaniel Burney JUDICIAL/SUBSIDIARY MEANS OF DETERMINING INTERNATIONAL LAW. the 2d Circuit turned to two UN General Assembly declarations. District Court! Under the 1789 Alien Tort Statute. even though their decisions are not binding on other countries. These mere declarations have been foundations for treaties and conventions which took these rights and built on them and codified them as international law.S.
Arbitration decision. even though he had been acting under the color of authority.Be wary of even the most highly-paid corporate lawyers’ advice on international law matters. not by the Libyan courts. and any blanks would be filled with international law. and it said you had to perform your contracts. See the judgment entered against Radovan Karadzic [70 F. Texaco Overseas Petroleum et al.) Not only is this customary international law. and by analysis of the principles they state. international legal standards won’t apply unless there is some other way to get international jurisdiction. So the 2d Circuit entered a judgment. Aside . but Surah 5 of the Koran was part of it.) This was not a suit against the Paraguayan government because of an official actor — Paraguay had denounced the defendant. Libya tried to nationalize the fields and refineries. Communications between the agencies are not fantastic.General Assembly Resolutions cited for the proposition that free-association and self-determination are norms of international law. The court said that UN resolutions are of varying weight. v. Back to Table of Contents 7 MicroBook Special Reprint Reprinted with Permission Source Document > http://www.htm < Source Document . (We actually deported him. As result of this case. In the experience of professional diplomats. Otherwise. and states that certain forms of conduct violate the law of nations regardless of whether undertaken by those acting under the auspices of a state or only as private individuals.There is no generally-recognized right to property in international law. and you can easily wind up getting screwed by the foreign government. many if not most corporate lawyers are clueless about the realities of international law.The legal value of UN resolutions can be determined on the basis of the circumstances under which they were adopted. so they went to the International Arbitration Court. Texaco’s lawyers put in the contract that the applicable law was Libyan law that was in accord with international law principles. planned for the worst and got an agreement that Libya wouldn’t nationalize the oil fields or refineries. Not all represent clear agreement.) Western Sahara Case (1975) . but if he or any of his property returns it is subject to jurisdiction.3d 232 (2d Cir. Note . and assessed compensatory & punitive damages. Libyan Arab Republic (1977) .A contract between a corporation and a foreign government is not international law. But Resolution 1803 of 1962 was a clear agreement that Libya would have to compensate Texaco.burneylawfirm.International Law – a brief primer Nathaniel Burney universally renounced.com/international_law_primer. Note . It had no unfettered right to take the facilities without compensation. but it is a fundamental principle that cannot be limited. and disputes would be decided by international arbitration. It’s much better to get an agreement between the US government and the foreign government. the Alien Tort Statute has been used more frequently. They had to find Libyan law. The defendant escaped the US before the judgment could be enforced. (That case has a good discussion of the sources of international law and affirms that these are real rules binding on us. 1995)] for genocide. Texaco went to Libya.
International law takes precedence over municipal law. 8 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. e. FOREIGN RELATIONS LAW The US is truly a nation of laws. and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty.. the substance of international law is not an issue of fact for the jury. and that in the event of a conflict international law trumps as a matter of municipal law. Nazis couldn’t defend their actions by saying they did what the Reichstag said to do. Only treaties are. and France. and neither can you. in many countries. Such regulations may either exceed or fall short of the requirements of international law. Other systems. yet we will be liable for the breach. there are conflicts at times between our law and international law. The principle that a state cannot plead its own law as an excuse for non-compliance with international law has long been established and generally recognized. even though our convoluted municipal law may result in failure to keep our end of the deal. then the rules of international law would be but the shadow of a name and would afford no protection either to States or to individuals. THE RELATIONSHIP OF INTERNATIONAL LAW TO DOMESTIC LAW AND THE RELATIONSHIP OF INTERNATIONAL LAW TO U. is that often our law is contrary to international law. We are bound to international agreements. Customary international law is NOT the supreme law of the land here.” Article 13 of the Draft Declaration of Rights and Duties of States adopted by the International Law Commission in 1949 says: “Every State has the duty to carry out in good faith its obligations arising from treaties and other sources of international law.g. See also Italy.S. if you can prove an international law violation. That is not an excuse for a violation. Austria. Lots of systems leave open the question of which rules prevail.. especially as compared to many other countries throughout the world. It has been constantly maintained and also admitted by the Government of the United States that a government can not appeal to its municipal regulations as an answer to demands for the fulfillment of international duties. Secretary of State Bayard said: “It is only necessary to say. Some other countries’ constitutions say that international law is part of their law.com/international_law_primer. See Switzerland and the Netherlands. In 1887. and in either case that law furnishes the test of the nation’s liability and not its own municipal rules. but you’re still going to have to compensate for the violation. A problem with that. Sometimes it happens because of internecine squabbles. Greece. but a matter of law for the court. e. like the US. In the United States.htm < Source Document . by the way.g. that if a Government could set up its own municipal laws as the final test of its international rights and obligations. We may be obligated by our law to not perform a promised duty. In Germany. don’t acknowledge international law as precedental over municipal law.International Law – a brief primer Nathaniel Burney II. Shouldn’t have undertaken the obligation. That standard makes sense. however.burneylawfirm. Also. you win in German court.
Courts don’t involve themselves in conflicts here — it’s a “political question” for the executive branch. between the feds and the states. The Constitution refers to international law in Article I § 8: Congress has the power to define and punish offenses against the law of nations. the most recent one prevails. The United States is very complex here. You cannot plead “supreme law of the land” to excuse a breach of international law. Under the Act of State doctrine. and the S. Treaty law is even more complicated. Not state law. Back to Table of Contents You have to break this all down into customary international law and treaty international law. if there exists a construction that doesn’t conflict. judge-made law. And the treaty would have to be either self-executing or already executed by Congress. There is authority for the President. etc. which the President is sworn to uphold. So the framers knew that international law existed. Commander in Chief of armed forces. and treaties made in the name of the US. monstrous powers in foreign affairs.htm < Source Document .An act of Congress is never to be construed in a way so as to conflict with international law.burneylawfirm. head of state embodying the country in international activities. The Constitution makes the President extremely powerful — Chief Executive Officer of carrying out all executive functions. The Constitution prevails over inconsistent treaties. Schooner Charming Betsy (1804) . when there is a true conflict. to apply US law over international law. because of separation of powers. Customary international law. When there is indeed a conflict. had a treaty or executive/legislative/judicial law existed. but note that it did not involve law contrary to US law. But first do all you can to interpret the law in such a way that there is no conflict. our courts applied customary international law. Treaties prevail over inconsistent state laws. it would have trumped customary international law. When a treaty conflicts with a federal statute. the courts just stay out of it. In the Paquete Habana case.com/international_law_primer. federal common law. we must apply the supreme law of the land. 9 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. Customary international law is still important — it just isn’t as strong as treaty law.International Law – a brief primer Nathaniel Burney So customary international law loses to municipal law. There are potential conflicts between the executive and legislature. Ct. laws made in pursuance thereof. Murray v. Period. Article 6 says the supreme law of the land includes the Constitution. No controlling treaty or municipal law existed. said that.
but only by the President with ratification by the Senate. nationalization. but it does have responsibility for interpreting the Constitution. Note . Implementing or executing it. define and punish felonies. Some say that a treaty where we say we will protect another country is a de facto declaration of war. and the power to declare war. there haven’t been all that many declared wars in the many conflicts in our history. regardless of what the House of Representatives or the Supreme Court might have said about it.International Law – a brief primer Nathaniel Burney The President also has an interesting power to receive ambassadors and other public ministers. Missouri v. Nevertheless. make rules for the conduct of the armed forces. Unlike acts of Congress. The legislature also got some international powers: it can borrow money. We had a treaty with England/Canada protecting migratory birds. held that state powers fall whenever they conflict with the treaty. This has been read to mean that the President alone has the power to recognize another country. A treaty that says “the parties agree to …” is binding. those treaties become the law of the land. states don’t exist so far as treaties and executive agreements are concerned. and are binding on the states as well as on the federal government. Such provisions thus are never self-executing. only such action as we deem necessary to take care of a situation. 10 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. treaties are de facto law of the land.the power to declare war is one such power.htm < Source Document .burneylawfirm. which Congress guards jealously. It is a slam dunk: the state loses. power of the purse for the executive to pay for what it wants to do. Ct. Under Belmont. The S.Conflict between a treaty and state law. which are the supreme law of the land only if constitutional. The only check on this power is where powers are given to Congress as a whole . Know the difference between Ratifying a treaty vs. The judiciary doesn’t have much. Congress alone has the power to decide the punishment — the treaty provision has to be executed by Congress. Treaties are not made by Congress. Back to Table of Contents Treaty international law.com/international_law_primer. A treaty that says “the parties intend to …” is not binding.Regarding declarations of war. Different things. The NATO treaty doesn’t require US commitment of forces. maintain & arm the navy. The 10th Amendment may or may not give the states and the people some say. The federal national interest is so supreme that treaties and executive agreements always trump state laws. If a treaty makes X a crime. This principle has been stated even more dramatically in years since. regulate customs. Missouri sued to prevent a federal game warden from enforcing the treaty. Holland (1920) . because Congress was and remains jealous of its power to declare war. state lines disappear.
Titles were granted to different people for the same land. Denying equal protection. An international agreement cannot take effect as domestic law without implementation by Congress if the agreement would do something that is within the exclusive law-making power of Congress. Neilson (1829) . then the US got it all. and so was willing to sell the whole Louisiana tract for $15M.The rule doesn’t apply when state action is required to implement a treaty.A treaty is equivalent to a legislative act whenever it is “selfexecuting. In order to secure the rights and privileges of the people on the land.burneylawfirm. Taking private property. or did it need an additional act of Congress. Treaties and executive agreements have the possibility of violating a constitutional provision and thus being invalid. the contract must be actually performed to get the end result. so it requires an act of the legislature. not citizens). Foster & Elam v. Just because a treaty is agreed-to. Denying due process of law.If a treaty is contrary to the Constitution. and Napoleon needed money for his wars.” Did that meant it was automatically ratified. The treaty was alleged to give the King of Spain power to grant title to land even after the US took control. Therefore.htm < Source Document . Limiting the right to travel. Restricting the rights of aliens (recall that the Constitution protects persons. Prohibitions on free speech. Reid v. Spain and France needed a treaty to settle it. Covert (1957) . The language said that such a grant “shall be ratified and confirmed. But the land had French subjects and Spanish subjects. The US needed access to the Gulf of Mexico. It envisioned an additional act of the legislature to implement it before the grant was confirmed. Self-executing treaties vs.com/international_law_primer.International Law – a brief primer Nathaniel Burney Note . when the terms are contractual. But. Non-self-executing treaties. Watch out for clauses in international agreements that are contrary to the US Constitution: Interference with the power to declare war. 11 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. it may still need a little more to make it the supreme law of the land. the parties must execute it. The treaty merely stated the intent of the parties to confirm a grant of land. the US. The treaty was contractual. The Constitution trumps.” That means it operates of itself without aid of any legislative provision. then the treaty fails.
com/international_law_primer.I’m not talking about “ratification” by the parties.R. Ratification is self-execution. An international agreement cannot raise revenue by imposing a new tax or tariff. If you write in a provision describing how the US will fulfill its obligations on its side. An international agreement cannot make something a US crime. anyway. The statute violates the international agreement.R.htm < Source Document . an international agreement providing for the payment of money by the US requires an appropriation of funds by Congress. then the US is under an international obligation to adjust its laws and institutions (if necessary) to give effect to the agreement. in part. Congress then let Hawaii export sugar duty-free. sure. (We’d get a reasonable time to do so before being held in default. Whitney v. It’s just a problem when the unilateral obligation is not rationally-related to the international agreement itself. The D.In the event of a conflict of a treaty with United States statute. (He won on 14th Amendment grounds. You do have some power to go into who implements what. The charter was not a binding set of rules without some other act.International Law – a brief primer Nathaniel Burney Thus. objected to the duty its had to pay. where the US would never give another country a better deal on sugar tariffs. 12 MicroBook Special Reprint Reprinted with Permission Source Document > http://www.) Any agreement which itself requires further legislative enabling action by the countries is nonself-executing. and the provision is self-executing. the one that is most recent in time prevails. When there is a conflict. If another country did get a better deal. then the later in time controls.R. This was held not to be enough. The plaintiff relied on the UN charter. then it is binding even if it hasn’t yet been implemented by the legislature. acknowledged that treaties and statutes are both the law of the land. that’s fine. Robertson (1888) . then look to things said by the White House/State Department or by the Senate in ratifying it.A California statute forbade aliens ineligible for citizenship from owning or using real estate. it held.burneylawfirm. If an international agreement is silent as to whether it is self-executing or not. California (1950) . and paid only under protest. The D. still has the right to reparations or other satisfaction. then the Dominican Republic would get the same treatment. but that’s not binding as part of the international legal obligation.If the agreement makes it enter into force. Note . and the intention of the US is unclear. so it was important that the treaty say they’d always get the lowest tariffs on sugar. Ct. The US and the Dominican Republic had a “most-favored-nation” agreement. but it can affect tariffs with “most-favored-nation” and similar clauses. claiming that the statute violated human rights. though. was utterly dependent on sugar exports. Note well . An international agreement cannot bring to US into a state of war. If a provision is non-self-executing. but the US law is whichever is most recent.) Fujii v. however. The D. The S.
but this agreement said that’s what the parties would do. Usually. it overtakes the legislation upon the passage of implementing legislation. The US and Italy had a mutual-extradition treaty. Back to Table of Contents 13 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. The executive branch decides when a treaty has been abrogated.burneylawfirm. A treaty is binding until abrogated. In this case. and so there was no need to extradite him.A breach of a treaty by one party makes the treaty voidable by the other party. and argued that because Italy had breached the agreement it was void.A more recent treaty overtakes inconsistent prior legislation automatically only if it is a self-executing treaty.International Law – a brief primer Nathaniel Burney Note . Charlton v. states don’t agree to extradite their own natives. So the American got extradited to Italy. Kelly (1913) . The Supreme Court held that a material violation of an international agreement doesn’t automatically void the agreement. however. An American was going to be extradited to Italy under this treaty.com/international_law_primer. so it was still binding and the US had to perform. Otherwise. Italy refused to extradite its own nationals to the US.htm < Source Document . they felt that it wasn’t worth it.
The lower court held that this would conflict with the interests of New York state. which would then be distributed among the United States citizens whose property had been taken. Back to Table of Contents 14 MicroBook Special Reprint Reprinted with Permission Source Document > http://www.S.International Law – a brief primer Nathaniel Burney III. the state still loses. § 112b.same holding. In exchange. The 1972 Case Act requires that Congress be given a chance to look at executive agreements within 60 days. United States v. 315 U. United States v. the President recognized the soviet government. Treaties must be. If an executive agreement conflicts with state law. the Constitution prevails. so that an agreement could be made where the soviets would drop their claims to the accounts. All that happens. held that the feds have sole and complete power over international affairs. EXECUTIVE AGREEMENTS 95% to 99% of all international agreements to which the United States is a party are Executive Agreements. New York didn’t have the power to recognize foreign governments. If an executive agreement conflicts with the Constitution. but in terms of international law there is no difference.C. Belmont. so it couldn’t be done. Not the same as a treaty.there is no need for congressional approval.com/international_law_primer. Pink. 1 U.burneylawfirm. so even if the result of federal action would be contrary to the controlling public policy of the state.The Soviets nationalized everything in Russia.htm < Source Document . state law loses. 324 (1937) . but they have been entered into from the beginning. the difference is that executive agreements are not submitted to the Senate for approval. The Constitution doesn’t refer to executive agreements.S. Nevertheless. Pennies on the dollar. as always. These are huge executive powers. The S. though. Only the President could do that. The President froze soviet bank accounts. Ct. American companies’ property was seized. but at least it would be something. because they are probably going to violate some executive agreement along the line if they’re unaware of it. 203 (1942) . is that Congress recognizes the existence of the executive agreement . The United States sued to recover the soviet deposits with him.S. Whenever there is a conflict between an executive agreement and state law. In terms of municipal law. Belmont was a private banker doing business in New York state. state law loses. 301 U. it is important to establish good relations with state authorities who do things.
So most executive agreements are Congressional-Executive Agreements. areas where the President has powers that he doesn’t have to share with Congress. Most presidential powers here are shared with Congress. If the agreement is crucial to international and national agreements. The S. Truman committed many troops to Korea.com/international_law_primer. The President may just sign the agreement as an executive agreement. 2. GATT. and the President still did it? What happens when Congress is vocally opposed to it. There are some. Congress was silent. NAFTA. the President alone can do these things. Only the really big commitments. or b. such as: Recognition of foreign governments.htm < Source Document . and the President still does it? 3. UN membership. Truman’s steel seizure case. While that was going on. said his power to do this had to come from either the 15 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. the President knows he could do a treaty or an executive agreement.International Law – a brief primer Nathaniel Burney When the President needs an executive agreement. These are rare. Ct. on his sole powers under the Constitution. So what happens when. The President makes the agreement. Congress has either supported it or acquiesced to it. Truman ordered the executive branch to take over the steel mills and keep them running. 50. nothing else. he should get a treaty. The President does it with Congress’ blessing. in certain economic agreements. albeit very few. The statute books are full of acquiescences by Congress to let the President make executive agreements in certain areas. Regardless of which basis it is. NATO. without a peep from Congress yea or nay. extradition.burneylawfirm. taxes. with congressional acquiescence if based on shared powers.regardless of how Congress votes. but instead he does a fast-track agreement. a steelworkers’ union strike was planned. even though the basis is shared powers. They cannot make any modifications. Back to Table of Contents Purely Executive Powers. Congress’ opposition or acceptance is irrelevant . neither kind of executive agreement requires congressional approval. based either a. versus Shared Powers. Receiving ambassadors. he can do one of three things: 1. Recall Youngstown Sheet & Tube. and it goes to the House and Senate for a strict thumbs-up or thumbs-down. postal matters. Sometimes.000 of whom would die there. Hours before the strike.
there were certain things he could then do. not even any act of Congress existed from which this power could be implied. Only once has a court addressed this problem. If the investigation turned up a problem. Chemical & biological weapons are out there. The standard is not the same as a conflict between a statute and a treaty. where Congress had passed a law to protect farmers. Only Congress could do it. Nothing is more important . however.tons of it is pouring over borders. They aren’t technically weapons. and they’re no joke either. What if Congress hasn’t spoken on a subject. So Truman lost . or actively supports them. and the executive agreement conflicts with a statute. In 1948. too. 16 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. The law said that should the President detect a possible trade problem. No statute. Congress winks at the executive’s actions. Nuclear devices are all over.the President did not have the power to seize the steel mills.International Law – a brief primer Nathaniel Burney Constitution or a statute. Usually. But this isn’t always the case. If the President lacks the sole constitutional authority to make this executive agreement. Congress justifiably is anxious that something be done about it and fast. the nonproliferation of nuclear weaponry. The lawyer’s job is to decide whether the President can go ahead or not. When there are shared powers.com/international_law_primer. which created a “zone of twilight” (soon the be the name of a TV show) in between the areas where each branch clearly trumps. This case had many different opinions. but they’re just as deadly. Justice Jackson’s opinion broke it down well (he was freshly back from the Nuremburg tribunal). So Congress gives the executive branch funding and marching orders to do “something” about it. There was lots of overlap between the powers of the executive and the legislature here.burneylawfirm. If Congress vocally opposes it. for example. Merely because Congress has powers in an area. that doesn’t mean that the President doesn’t. and Congress shares the authority. so it’s still okay. Because we aren’t part of an exclusive club here any more.htm < Source Document . Executive agreements are handy tools for doing something about it. then there’s a problem. then the President was to order an investigation. Apply this analysis to conflicts in foreign affairs: Take. and the President makes an executive agreement? The President has a good record here. it is important to know whether Congress has spoken on the area. only three of which allowed the President to go ahead and do it. then Congress prevails. the 4th Circuit decided Capps.
The court nevertheless still held that the executive agreement failed because Congress had said not to do it. but only for seed purposes. as it was only a few months old. Of course the Secretary of State likely had no knowledge of the statute. not for eating. Congress had spoken . The Secretary of State made an executive agreement with Canada to permit unlimited potatoes.burneylawfirm. So Capps remains the only precedent here. but it really wasn’t on point here. Back to Table of Contents 17 MicroBook Special Reprint Reprinted with Permission Source Document > http://www.commerce and trade. Regan.International Law – a brief primer Nathaniel Burney Our ambassador to Canada noticed that a lot of potatoes were pouring in to the United States from Canada.don’t do X without doing Y.htm < Source Document . This is clearly a shared power . Dames & Moore v. The Secretary of State took it upon himself to do this without going through the steps Congress had laid out. There was another case in 1981.com/international_law_primer. There was much citing of Youngstown.
18 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. then ran back to the Switz.but states are the big ones. meeting to determine who was to pay for a certain project.each entity would retain the borders it had prior to independence. . The Swiss ambassador ran over to the Liech.International Law – a brief primer Nathaniel Burney IV.It is a common principle that emerging states inherit the territorial borders they had before. seat to argue that the beneficiary nations should pay for it. Emerging states .htm < Source Document . Four Requirements: 1. If another state governs you. Still. for example. but you do need some people. etc.N. CAPACITY TO ENGAGE IN INTERNATIONAL DEALINGS WITH OTHER STATES. the “all bets are off” approach seems to be the exception. There was a U. 3. corporations. A “government” is not the same thing as a “state. the only other alternative is bloodshed. Border disputes are common. Had the nations of the world enforced that border agreement. Not every single river. More on the 4 requirements: States can give up any of these. STATES Definition. seat and argued that the U.N. yet it is still a state. 2. much of the bloodshed and atrocities would have been avoided. Can be a few hundred only. Liechtenstein. rather than the rule. DEFINITE POPULATION OF PEOPLE. DEFINED TERRITORY. The former Yugoslavia did have a border agreement at first . UNDER CONTROL OF ITS OWN GOVERNMENT.com/international_law_primer. if you are to know what to do in a situation. 4. for emerging states. should pay for it. You have to make decisions on whether an entity is a state or not. you’re not a state yourself. OVER WHICH THE SOVEREIGN EXERCISES CONTROL. international organizations.” A government is a separate entity from the state. Usually. States are not the only actors there are also people. stream and rock need be defined. The nation-state is the fundamental entity of international law.burneylawfirm. has given p all foreignaffairs power to Switzerland.
19 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. but it helps.Recognition neither creates nor constitutes a state.. rights and duties of states include the following: Sovereignty over its own territory. become a member of international organizations. even if it meets the 4 requirements. and transfer property. Territorial or non-territorial communities which have a special international status by virtue of treaty or customary law. Recognition is discretionary. acquire. and general authority over its nationals. and be subject to.International Law – a brief primer Nathaniel Burney Usually. Cases where states have merged or formed a union. There is no duty to recognize a state. The question of statehood arises particularly in the following situations: Break-up of an existing state into a number of states. and pursue. Back to Table of Contents Recognition of States. Salimoff (1933) . Cases where foreign control is exerted over the affairs of a state. Recognition is unnecessary for you to be a state. unilateral imposition of authority..htm < Source Document . Status as a legal person. Secession or attempted secession by part of a territory of an existing state. make contracts and enter into international agreements. with the capacity to: own. legal remedies. or delegation of authority.burneylawfirm. But sometimes.com/international_law_primer. The capacity to join with other states to make international law. and which claim statehood for certain purposes. whether by treaty. as customary law or by international agreement. Claims by constituent units of a union or federation to the attributes of statehood. The Restatement (Third) § 206 states that the capacities. this is not a problem.
States long for recognition. And without the French fleet in the Hampton Roads. A government may be a hard thing to find. Only then could France intervene (and even then it was way premature). In retrospect. Is there ever a duty not to recognize a state? Yes. embassies remained there for a very long time in horrid conditions. as well.) The driving force behind Antietam and Gettysburg was foreign recognition by the French. though. human rights still mattered. (as well as that little thing called winning the war. as in Somalia in the 1990s. for example. Wait until it’s really independent. to emphasize the nonrecognition of any incorporation into Iraq. because the smart British took control of the cities. This was calculated to get British and French recognition. The average subject. Rhodesia. founded on a violation of international law. etc.International Law – a brief primer Nathaniel Burney Even if you don’t recognize a state. Then Saratoga. Other situations where you don’t recognize a state: Where recognition would be premature. Recognition was a major issue in our Civil War. even though it is there. though they came very close. but couldn’t. they should have gone after Washington’s army. recognition is a political power left up to the President alone. and there would be no United States. British.K. was a fake South African apartheid “home-rule” reservation.burneylawfirm. They need foreign recognition. the Dutch first (to stick it to the English). we wanted recognition from other countries. In the United States. as when an emerging state is still in the throes of civil war. Like when Iraq invaded Kuwait. there would have been no surrender. (Even though they were starving. Prussians. but that’s a subject for another discussion). but they didn’t. the United States and U. for there to be recognition.com/international_law_primer. France wanted to. and savor it when they have it. Illegal states. showed that the rebels had something to back up their independent entity. The Confederacy at first fought a defensive war. in certain circumstances. and there was great starvation. the first time the brits got their butts kicked. you may still be obliged to treat its authorities and actions as if it is a state. Then Lee said that the best way to win the war and get foreign recognition was to invade the north. As when the general international consensus is that control has been wrested by force or threat of it. was still so appalled by the idea of slavery that no matter how much it hurt the British refused to recognize the Confederacy. There has to be a government in charge. Other states were eager to recognize us. and nonrecognition of the puppet government. even though it isn’t necessary for statehood.htm < Source Document . The blockade of the southern ports had put vast numbers of the British population out of work. 20 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. When the United States rebelled against England.
but it isn’t law yet. etc. petty people. Lesson: Governments are made up of people.. The UN peacekeepers are there with the consent of the government. and they don’t like the implications.. Safeguarding human rights. 5. because all sorts of peoples lived there. and the UN said they had to do the above as well.) But nobody else has recognized it. Recognition would be accorded in light of the state’s adherence to: 1.htm < Source Document . it still may have responsibilities and obligations as a de facto state. Also. unsurprisingly). below. there is a difference between recognition of a state and recognition of a government. but went the opposite direction and became so. It looks like a state. These criteria are NOT part of customary international law! They are expedient. even if it would be okay. Respect for all existing borders. And the flag resembles Alexander the Great’s seal.burneylawfirm. post offices. Yet nobody has recognized it. based on full respect for the individual and including equal treatment of minorities. not law. 4. acts like one. both internal and external — and change to those borders only through peaceful and consensual means. (So immediately Turkey and Bulgaria recognized it. not a de jure state. 2. This may be the beginning of a custom. and it gets mad at anyone who even thinks of it. See Recognition of Governments.. Recognition isn’t guaranteed. other than that you don’t like each other). Back to Table of Contents 21 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. the US. Bitter. Nonrecognized states can and do engage in activities that affect other states. developed following the Yugoslavian crisis that began in 1991. Yugoslavia had the same situation. you can do both yet still have limited or severed diplomatic relations (these mean little. Slovenia had broken off and whipped the Serbs’ thoroughly. Even though a state is not recognized. so the Greeks don’t like that either..International Law – a brief primer Nathaniel Burney Finland wasn’t recognized for a while. But the EEC. that it is not one state any more. people. because Greece doesn’t like the name (they have a border province with the same name. Respect for international law and obligations. and the EEC has gone back on requirements in many cases. Because a government is not the same thing as a state. especially adherence to the Helsinki Final Act and the Charter of Paris. Macedonia meets all 4 requirements for statehood. Support for democracy and the rule of law. Peaceful and democratic determination of the country’s future. (Proposed) FIVE ADDITIONAL CRITERIA FOR RECOGNITION. balkanized. So Greece hasn’t recognized Macedonia. with emphasis on the key role of elections in the democratic process. See.com/international_law_primer. 3. They got their own territory.
De facto . we just don’t have any embassies there. Mexico never recognized Franco as the de jure government of Spain. but that’s all. It is possible to recognize a state . whether by revolution or whatever. During the 1800s. instructing the U. In the 20th Century.yet not recognize the governing authority. There are certain legal ramifications in your own country. and to transact its business through whatever agents it may think proper to employ. For example.” For a long time. (Still.htm < Source Document . This has resulted in a ton of awkward. Foreign governments that are not recognized cannot sue in United States courts. whose decision will be conclusive on all domestic courts. Like the United States did with Vietnam. There was a period of time when we didn’t recognize governments of revolutionary countries (like Mexico). The one we like best. De jure . not judicial. regardless of how the government was formed.the “proper” government.) 22 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. The 1930 Estrada Doctrine (from the Statement of Mexican Foreign Minister Estrada) was that there is no need for recognition of governments.International Law – a brief primer Nathaniel Burney Recognition of Governments. envoy in Paris that “it accords with our principles to acknowledge any government to be rightful which is formed by the will of the nation substantially declared. we recognize Castro’s government in Cuba.its borders and people at least .S.the government that is actually there. It is to be determined by the executive.Which government is to be regarded as the recognized representative of a foreign sovereign state is a political question. We developed an interesting dichotomy between de facto government and de jure government. of New York v.S. difficult situations and problems. There is no requirement under international law to recognize a foreign government.burneylawfirm. Standards for Recognition of Governments: Thomas Jefferson set the early stage for this following the French Revolution. Guaranty Trust Co.com/international_law_primer. So go ahead and slap that government in the face by not recognizing it. 304 U. Being the de facto government is enough. United States. the United States got upset at the Latin-American governments. the “lawful” government. 126 (1938) . if it was formed by the will of the people then we recognized it. You can also recognize a government yet choose not to have diplomatic relations with it. to change its institutions at discretion. we had the simple standard that every nation possesses a right to govern itself according to its own will.
“To hold that a government which establishes itself and maintains a peaceful administration. you may be impermissibly intervening in a civil war. but they did so way prematurely (when the fall of Madrid was anticipated by many observers).Britain asserted claims against Costa Rica for acts of the predecessor Tinoco regime. Such premature recognition can constitute impermissible involvement in the conflict. and also because the successor government had not been led by British nonrecognition to change the government’s position. does not become a de facto government unless it conforms to a previous constitution would be to hold that within the rules of international law a revolution contrary to the fundamental law of the existing government cannot establish a new government. and it’s usually a bad idea for a corporation to contract with a government anyway). Costa Rica argued that the Tinoco regime was not a government. They actively got involved in the conflict anyway. with the acquiescence of the people for a substantial period of time. The sole arbitrator (Chief Justice William Howard Taft) held that a government which asserts control throughout the country with the acquiescence of the people becomes the de facto government — the nonrecognition of it by major powers has no effect on whether or not it is the government.” It didn’t matter that the government wasn’t recognized.com/international_law_primer. This had been a deal between a British company. and Costa Rica. (Of course the Nazis had no problems with violating international law left and right.International Law – a brief primer Nathaniel Burney The movement now is to just focus on the de facto government. Britain stepped in to protect the company (rare. The Nazis and Italians supported Franco as the lawful government. including an oil concession to a British company. What is the status of a government during the murky period of nonrecognition? Tinoco Claims Arbitration (1923) . If you do it too soon. You couldn’t deny that it had been in control. Britain didn’t recognize the Tinoco regime. When has a government emerged to the point where you can recognize it? Have to be careful. Restatement (Third) § 203 . and that its acts couldn’t be repudiated. 23 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. It’s still an emerging area of law. Also. true. and is not. Britain argued that the Tinoco government was the only government in Costa Rica when the liabilities were created.Although you don’t have to formally recognize the government of another state. This cannot be. the claim of estoppel was wrong because the British nonrecognition didn’t dispute the existence of the Tinoco regime.htm < Source Document . not the government.burneylawfirm. When it fell. you still have to treat as the government whatever regime is in effective control of the state (unless its control came about in violation of international law). the restored government nullified all of the Tinoco contracts. which had come to power by a coup and maintained itself in control for two years. There were two warring camps over who represented the people of Spain in 1936. and that Britain was estopped by its nonrecognition of Tinoco anyway.) There is definitely a subjective element to this.
The Soviet government was not yet officially recognized by the United States. You also can’t take over a portion of a state and speak for the whole state (with the small exception of obligations that are normally incurred by government anyway). Note that this was only property located within the USSR. who claimed that the Soviet government was a band of robbers. Is it a party to the court proceeding? The USSR met all four requirements of statehood. Salimoff & Co. 24 MicroBook Special Reprint Reprinted with Permission Source Document > http://www.Even though the Soviet government was not recognized by the United States. maintain diplomatic corps.com/international_law_primer. v. Once in a while. Here.. Control can be brief. then you’d be recognizing it. Tinoco only had thirty months. the only parties involved were businesses. oil land. Recognition does not create the state. such as bank accounts in the United States.burneylawfirm.Y. neither party was the Soviet government. It can’t be just for a day. The Shah’s agreements are still binding on Iran. and they have to go through the procedures to remove them if they don’t like them. We didn’t permit the Soviets to confiscate assets abroad. Here.they are still the effective government of their states. Nonrecognized governments can engage in acts that will be recognized by United States courts. was in the USSR. If a nonrecognized government is allowed to sue. New York Court of Appeals 1933 . though.htm < Source Document . changes in government don’t change the state’s obligations.International Law – a brief primer Nathaniel Burney Ordinarily. 1. and the Soviet government de facto existed.. etc. soviet confiscation of property within the territory of the USSR was binding on the United States courts. not for himself. and it was legally binding in United States courts. Is the foreign government involved? 2. however. Remember Tinoco in dealings with nonrecognized entities . Standard Oil of N. The de facto power in control of the Russian territory was the Soviet government. The President signs for his state. The land had been confiscated from Salimoff & Co. unrecognized governments do things like sign agreements with foreign governments. so what was the validity of its acts? The case was taken to court in New York State. The first thing to ask in a situation like this is “Is a foreign government (or its agency) a party directly involved?” There are a whole array of analyses that will go wrong if you don’t ask this first. So the New York court held that the Soviet government’s actions did pass title of the oil lands. The property in question.
and they’re not really able to engage in foreign relations. currency. It can be treated as a de jure government. But they aren’t necessarily in control of their own territory. Upright v. to which the judiciary deferred. Bizarre exception to the rule that nonrecognized governments cannot get access to United States courts. regardless of the validity of the manufacturer. You made the note.) 25 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. but Israel won’t let that happen until they’re satisfied on security. You have to choose whether to take the status of de jure government in exile.burneylawfirm. and the manufacturer of the typewriters was an instrument of that government. The State Department wanted Iran to be allowed to sue. however. a State Department amicus is actually given weight by the courts. because East Germany didn’t feed its workers). however. The defendant company issued a note to pay for typewriters from East Germany (very cheap. (Israel still makes agreements with the Palestinians regarding extradition. acting out of London. thus it is not a state. On international law matters. the fact that the government was not recognized doesn’t invalidate the typewriter sales transaction.International Law – a brief primer Nathaniel Burney Salimoff. The note got passed around. Maybe they’ll be an independent state sometime. 1988). however. It may be de jure. M/T Stolt Sheaf (2d Cir. that would be admitting that they weren’t actually in control. However.htm < Source Document . The PLO decided not to. Iran was trying to sue in United States courts over black-market shenanigans. Mercury Business Machines. on this one occasion only. New York appellate division 1961 . It doesn’t control a defined territory. because although it could have been recognized as such. The Polish government in exile was very effective during WWII. etc. that doesn’t invalidate private obligations arising out of dealings with that government.com/international_law_primer. The executive has great powers here.you can’t transact with the manufacturer and then refuse to honor your own note. Fairness is also an issue here . you honor it.Just because a government isn’t recognized. also means that successors of nonrecognized governments are bound by their actions. read in conjunction with Tinoco. claiming that East Germany was not a recognized government. A foreign government in exile is not a “de facto” government. even though the manufacturer was controlled by that government. The defendant company rebuffed the poor schmo. and citizen Upright tried to have it honored. passports. The Palestinians have been doing everything they can to look like a state they’ve got a flag. National Petrochemical Company of Iran v.
If a state has just undergone a change in government. (They do. If every ethnic.. Sea. Peace. but the hard part is defining “Self” in “self-determination. States are sovereign.burneylawfirm. that leads to more separatism. Only a concern if the state acquired sovereignty over a territory from another state (absorbed another state or part of it. The problem is. There is also a middle course. One source of customary international law here is the United Nations Declaration of Principles of International Law Concerning Friendly Relations Among States in Accordance with the Charter of the United Nations (1970). a right of minorities to be themselves without being punished — a right to participate in cultural. security and economic well-being for all would become even more difficult to achieve. The rights and responsibilities a state takes from its predecessor are only those which it can convince other states that is has succeeded to. religious or linguistic group claimed statehood. of course. and cannot interfere with other states without permission. The right of peoples to self-determination is undeniably a right under customary international law. Nor may they be entitled to foreign assistance.) Back to Table of Contents Sovereignty over Land. the territorial integrity or political unity of sovereign and independent states conducting themselves in compliance with the principle of equal rights and self-determination of peoples. linguistic. 26 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. for example). Back to Table of Contents Self-Determination. Self-determination is not just the right to break free and establish a new territory. Separatist groups may not have the right to rebel. The declaration is not meant to authorize or encourage any action which would dismember or impair. the rights/capacities/obligations of the state are unchanged. have human-rights rights. Citizens owe real allegiance to their sovereign state (IRS goes wherever you go.htm < Source Document .International Law – a brief primer Nathaniel Burney State Succession. or became independent). groups. This is a big exception. etc. there would be no limit to fragmentation.com/international_law_primer. and Air. Sovereigns are responsible for everything and everyone inside their territory. totally or in part. and thus possessed of a government representing the whole people belonging to the territory without distinction as to race or creed. The right to split away and form your own new government is only recognized in terms of ending colonialism or ending foreign subjugation.
The United States got Spain’s Pacific holdings. On one side of an imaginary line drawn through the woods. Spain got inchoate title. by Spain.International Law – a brief primer Nathaniel Burney UN Charter Article 2. and there are many border disputes around the world. Usually. But all they did was see it. at least they were the first Europeans to sight it). Well. in most cases. descends from discovery of the land. How do you acquire territorial sovereignty? How do you get control over this plot of land? Borders are not set in stone. not with tanks. and the Treaty of Paris specifically included this island (well. they didn’t set foot on it. with the exception of enforcement. And the Dutch weren’t party to the Treaty. they’d have had to occupy the island. you can’t determine which side of a border you’re on. ¶ 7. but the Dutch government had been having official relations with the tribal leaders there. Acquisition of Territorial Sovereignty. 27 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. Island of Palmas Case (1928) .com/international_law_primer. So was the island Dutch or American? Spain had based its territorial claim on discovery (well. To maintain your territory. so they wouldn’t be estopped by the map anyway). Borders have amazing legal ramifications. there was nary a peep out of Spain. Right on the international boundary between the Dutch East Indies and the Philippines sat the Island of Palmas. based on a continuous and peaceful display of sovereignty. But most border disputes are settled by negotiations.oft-cited case here. It had been treated as Dutch by the Netherlands for centuries. By discovery. but including something on a map that’s part of a document is dangerous this way.htm < Source Document . You have to do something else within a reasonable period for title to vest. but not a day goes by without some action to maintain your borders. but not settled. The Dutch claimed that it was theirs. says that you can’t interfere with what a sovereign does in its own territory.burneylawfirm. it wasn’t listed in the document. During the couple of hundred years that this was going on. you don’t have to physically occupy every square inch of land 24-7. you’ll be punished for behavior that may be positively encouraged on the other. and they’d had dealings with the island from time to time. without GPS or a surveying team. It had been discovered. they hadn’t occupied it either. That’s just a preliminary right. In this case. on the map only. Title.
28 MicroBook Special Reprint Reprinted with Permission Source Document > http://www.burneylawfirm. Denmark lost Norway and Sweden because it had sided with Napoleon and lost (ironically. and in good Nordic tradition submitted it to ICJ arbitration.com/international_law_primer. “I don’t see anybody here. This was a big deal . In 1814. In 1921.International Law – a brief primer Nathaniel Burney At the very least. not until the first half of the 20th century. Spain should have objected to the Dutch activities. And thus so was the United States when it took over Spain’s territories. TWO REQUIREMENTS FOR “PEACEFUL AND CONTINUOUS DISPLAY”: 1. Display that sovereignty through affirmative actions . it was estopped from claiming sovereignty over the island.” Denmark disputed this claim. if part of a land mass. (“It’s ours because it’s close to us. Denmark still retained control over Iceland. saying that it had been terra nullius. By failing to do so. Sweden’s new ruler had been a field marshal for Napoleon). Spain’s claim of “contiguity” was a red herring here.not just by saying that nobody else owns it. However. and some other islands. For many years. and nobody had disputed it until 1921. Norway disputed Denmark’s claim. Norway landed a military force on the island. From 1815 to 1914. AND 2.htm < Source Document . Legal Status of Eastern Greenland Case (1933).”) That’s not a factor when islands are at issue. Denmark based its claim on a peaceful and continuous display of sovereignty (having read the Island of Palmas case). however.000 square miles of territory. but they had done what they could they put their claims in international documents from time to time. and that now they occupied it. Demonstrated will to be sovereign. Greenland. In 1931. Maybe. in the meanwhile. nobody objected or disputed Denmark’s claim to Greenland. there was no doubt about their claim. Norway would have lost anyway. According to the court. It’d been continuously asserting its rights.840. Denmark had done little. on 2 other unrelated grounds. and it’s mine now. Norway secretly coveted Greenland. and even between 1921 and 1931 Denmark had still done enough for the arbiter to decide in their favor.
Just some vague statements between ministers at a cocktail party. How could that possibly be legally binding on Norway? Norway’s Minister for Foreign Affairs sent an official memo back to his government on July 22.htm < Source Document .burneylawfirm. What they should have done was either not sign it. They can live with the borders as drawn. The ICJ held that it wasn’t binding anyway. or make them all contested (in which case bloodshed is unlimited).International Law – a brief primer Nathaniel Burney Norway had failed to object when signing a multilateral agreement on herring. state that your country does not assent to that assertion). 1986) — There are lots of problems in Africa resulting from political borders being drawn across tribal and geographical boundaries. But the PCIJ rejected that claim. the Court found. 1919. PUT IT IN WRITING.com/international_law_primer. saying that it was a marvelous example of his witty nature. bloodshed was avoided by an ICJ settlement. It was sufficient. DON’T DO BUSINESS ORALLY. 29 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. Burkina Faso v. especially because the conversations can’t accurately be reconstructed.C.” The PCIJ considered it “beyond all dispute that a reply of this nature given by the Minister for Foreign Affairs on behalf of his Government in response to a request by the diplomatic representative of a foreign Power. not in diplomatic channels. Norway replied that under its constitution. His handlers quickly covered for him.J. Here. Republic of Mali Frontier Dispute (I. that the foreign minister acted within his province in replying to an inquiry of the Danish government. in regard to a question falling within his province. stating: “I told the Danish Minister to-day that the Norwegian Government would not make any difficulty in the settlement of this dispute. Mali’s President made a statement to the press that Mali wouldn’t care if Burkina Faso got the disputed territory. or make a reservation (up in the corner. Norway’s express promise not to contest Danish sovereignty over Greenland were oral. Don’t take the risk of getting stuck like this. because the statement was made to the press.” Understandably. the foreign minister could not enter into a binding international agreement on matters of importance without approval of the King in Council. where the Danes had stated that Greenland was theirs. Norway had expressly promised not to contest Danish sovereignty over Greenland. lawyers get antsy when the appointed diplomats start talking out of turn. is binding upon the country to which the Minister belongs.
and they run out of fuel over water. There is NO right of innocent passage in AIRSPACE. Honduras (I. Back to Table of Contents 30 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. 1992) — A riverbed was the border. Footnote: The horrid bloodshed and war that led up to this case was the result of a soccer match! I kid you not. Pilots die because countries won’t let us fly over their airspace. Airspace goes all the way up into outer space above your territory. The riverbed shifted. we ask for ID before it gets to the 12-mile limit. When an incoming craft is high-speed. Thalwig Doctrine — Borders along rivers are usually in the middle of the NAVIGABLE CHANNEL. or who are just dropping leaflets.) If the shift is gradual (accretion).J.htm < Source Document . Countries vigorously enforce their airspace as their territory. Use of force against violations must be PROPORTIONATE.burneylawfirm. then the border is not changed.com/international_law_primer. So now where was the border? (This happens all the time on the Rio Grande. Don’t shoot people down who pass in and out. even within the 12-mile limit/territorial sea. not necessarily the same thing as the physical halfway point of the riverbed. not technically international law. but try telling that to the Sovs. but that’s out of caution. You have to get explicit permission to fly over someone’s airspace. everybody needs clearance for each plane going over each country’s airspace. too. If the shift is sudden (avulsion). AIRSPACE/SEA TERRITORY (much more on this under “Law of the Sea”). and often it isn’t given. There is a right of “innocent passage” on water within the 12-mile limit (the territorial sea). These rules are real. You may not even have the right to shoot the plane down.C. Americans are dead because of them.International Law – a brief primer Nathaniel Burney El Salvador v. Regularly-scheduled airline corridors and routes aside. then the border shifts with the riverbed.
International Law – a brief primer Nathaniel Burney V. not solely their actions as government agents. a state 31 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. Back to Table of Contents Individuals and Nationality. or as a responsible official in government. Non-governmental International Organizations. whether as a head of state.) A truly “multinational” company is owned by several countries. The individual has always been a factor in international law. Great Britain) (PCIJ 1924). Crimes against international law are committed by men. A Greek citizen said he had been treated unfairly by Great Britain in violation of international law. DIPLOMATIC PROTECTION — the state takes up a citizen’s claim on behalf of the individual. shall not be considered as freeing him from responsibility. For example. and only by punishing individuals who commit such crimes can the provisions of international law be enforced. nor in mitigating punishment. Given powers by states (specified in the organization’s charter). and he asked Greece to take up his case before an international tribunal.burneylawfirm. Individuals can be responsible to international law for their own actions as individuals.com/international_law_primer. The official position of a defendant. Powers include much of what states can do. CORPORATIONS and INDIVIDUALS International Organizations.htm < Source Document . The PCIJ held that. These are tolerated by states. with piracy if for no other reason. not by abstract entities. Mavromattis Palestine Concessions (Greece v. Not corporations that operate in several countries. These are established by states. by taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf. Great Britain said an individual has no right to have a state take up his claim on the individual’s behalf. Governmental (Public) International Organizations. Multinational Companies. they may be able to enter into treaties with states. NON-STATE ENTITIES: ORGANIZATIONS. (Those are “transnational” corporations.
but not for little crap. States can’t arbitrarily strip you of nationality. Extradition treaties may provide that a state need not extradite its own nationals. they’re residents of some state or other. they are not entitled to the same rights as nationals. Whatever your citizenship. Tinoco Claims Arbitration case again. Panama. you have no protection. Many states are signing agreements envisioning asylum. Sure. Determining the nationality of the individual is therefore CRITICAL in a situation like this. It’s okay for espionage or treason.com/international_law_primer. The decision to provide “diplomatic protection” is left up to the state. Thus. to know if there are any applicable treaties. Nationality is important. The doctrine of diplomatic protection is alive and well. but they aren’t nationals. the laws of your country can follow you wherever you go. and most permissive liabilities law. It just happens to be asserting that right through one of its subjects.htm < Source Document . and is in constant use. if your country so desires. you’re screwed. but it isn’t customary international law 32 MicroBook Special Reprint Reprinted with Permission Source Document > http://www.International Law – a brief primer Nathaniel Burney is in reality asserting its own rights — its right to ensure respect for the rules of international law. Corporations have nationality. [Aside: Honduras. it’s good to have backup.burneylawfirm. there are obligations on how you treat them. It is not the individual’s decision to make. If you are stateless. There is no right of asylum. Stateless people are at the mercy of a cruel world. A state can give diplomatic protection to a national. A state has prescriptive jurisdiction over nationals overseas. You’re an alien everywhere. You need to know the nationality of people in a given situation. Great Britain took up the corporation’s claim on its behalf against Costa Rica. But once admitted. for ships and planes.] Decisions about nationality are important. Many refugees are stateless. There is no international law obligation to let aliens into your territory. as do ships & planes. This makes things even worse if you have a problem on such a ship/plane. no matter what awful thing is happening to you. and Liberia have competed to have the lowest safety standards and taxes. Only the state of which the individual is a national has the right to provide diplomatic protection. No state can intervene on your behalf.
J.com/international_law_primer. enemy aliens are frequently rounded up and put into interment camps where they are held to be traded for your own nationals abroad. Then he went back to Guatemala.C. Nottebohm Case (Liechtenstein v. Note. are bad. but whether it is honored or not is different.C. They could only do that if he really was a Liechtenstein national. and he went through them to become a national. and he was a Liechtenstein citizen. In wartime. it was suddenly not a good time to be a German national. Liechtenstein was outraged that its passport was being treated like toilet paper. this wasn’t a formal extradition.) Mr. because first they had to decide whether Liechtenstein was allowed to assert diplomatic protection and assert the rights of this individual. he just left a security deposit. but they aren’t required to say that under international law. Guatemala) (I. He never became a Guatemalan national. He said he wasn’t a German. 1955). (Nationals have a right to a passport. The case never got to the legal issue of extradition. He took an oath of allegiance and paid back taxes.International Law – a brief primer Nathaniel Burney yet. but that’s the way things worked then. Guatemala didn’t honor it. There they had some minimal procedures for naturalization. (Countries have since gotten tired of this loophole. however. All citizens are nationals. (Interment camps based merely on race.htm < Source Document . where your own citizens are put.) Mr. only a tiny portion of the population are citizens (with rights like owning property. N. but not all nationals are citizens. Well. and doesn’t affect how someone is treated under international law. WWII began. He paid his fees. he was a Liechtensteiner. Citizenship is decided under municipal law. So he went to Liechtenstein.).) After 34 years (it was now 1939). At the age of 24. and sued Guatemala in the I. although most of the population may be nationals. he didn’t really pay the taxes. In some countries. Established the rules for when states must accept you as a national of X country. was picked up by the Guatemalans and sent to the USA for interment. because that way he could avoid taxes. Big-time important case.burneylawfirm. Many states also say you can’t be repatriated once you’re in their territory. etc. When must a state recognize your passport. he went to Guatemala. they waived the residence requirement. Had his passport and everything. they were just deporting an alien. Nottebohm was born and reared in Germany. Extradition is when you send someone to another country to stand trial for a crime.J. 33 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. and lived & worked there for a long time.
his switch wasn’t genuine. said no.htm < Source Document . whether other states must recognize that nationality is up to international law. Involuntary Nationality. and was an American citizen. A state is not required to recognize a nationality imposed by another state on an individual against his will on the basis such as marriage to a national. You might be able to say there isn’t a genuine connection. his establishment.. his interests. citizen.com/international_law_primer.C. Mergé v.. 34 MicroBook Special Reprint Reprinted with Permission Source Document > http://www.) They were assigned to live in Imperial Japan. his intentions for the near future. at the age of 54.” Requirements: At the time of naturalization. Mrs. they say “Welcome back. . Mergé was born in the United States. bearing a child there. So Guatemala didn’t have to honor his Liechtenstein nationality. Nationality is a legal bond having as its basis a social fact of attachment.J.International Law – a brief primer Nathaniel Burney Critical point — international law leaves it up to each state to make the rules for nationalization. his family ties. or having a particular ethnic or national origin. that’s the requirements to be a national.burneylawfirm. Nor is a state required to recognize a nationality that the individual has renounced. Merely being a resident isn’t enough for this “genuine connection. Italian Republic (1955).” and the next thing you know you’ve been sent into the army for your required service. did the individual appear to have been more closely attached by his tradition. his activities.. together with the existence of reciprocal rights and duties. a genuine connection of existence. (Not only had she married an Italian national. Critical point — but. This may violate international law. a specified period of residence. United States ex rel. She married an Italian.. You walk through the airport. acquisition of real property in the state’s territory. she married a diplomat under Mussolini. . thereby becoming an Italian citizen under Italian municipal law. Dual Nationality. interests and sentiments. Whatever the state says are the requirements. to this state than to any other state? Here. Some countries embrace you as a national whether you want them to or not. the I.
thereby acquiring both US and Austrian nationality. economic bonds. When wars are over. which was destroyed during the war. Sad case. At the end of WWII. Austria & Hungary) (1928). claiming that she was an Italian citizen.htm < Source Document . Second. he was interred “as an agitator engaged in propaganda in favor of Russia. social/family bonds. States cannot assert diplomatic protection against another state when the individual is a dual citizen of both. Commission held that a 5-year-old accompanying his parents to Austria was voluntarily incurring the risk incident to residing in Austria. on the ground that Tellech was a citizen of both countries and that he had voluntarily taken “the risk incident to residing in Austrian territory and subjecting himself to the duties and obligations of an Austrian citizen arising under the municipal laws of Austria. The Commission had to decide whose national she was. The United States therefore couldn’t make a claim on her behalf for the loss of the grand piano. and foreigners who had property in the United States.burneylawfirm. Under United States law. he was impressed into military service. bring claims in front of commissions where nationality is important. her US citizenship became very valuable. etc. The US brought a claim on her behalf for the value of the piano. First. That was no help. your principle or habitual residence.International Law – a brief primer Nathaniel Burney She tried to maintain her United States citizenship. In 1914. so the US couldn’t represent her. which says you cannot ask state 1 to intervene against state 2 when you are a national of state 2.com/international_law_primer. such as an international tribunal. Italy refused. looked at the Hague Convention of 1930. there is a different test — what is your DOMINANT nationality? What is the country to which you have the most connections. United States citizens who owned property in other countries. BUT. and voluntarily subjugated himself to the duties and obligations of an Austrian citizen.” 35 MicroBook Special Reprint Reprinted with Permission Source Document > http://www.” After 16 months in an interment camp. The Commission rejected a United States claim on his behalf. looked at the peace treaty. if you are before a third party. she possibly could have maintained it. the Commission decided that she was principally an Italian citizen. He lived in the US until he was five years old. Applying these factors. at the age of 19. Alexander Tellech Claim (United States v. The claimant was born in the United States of Austrian parents in 1895. when he accompanied his parents to Austria. She’d had a grand piano in Italy.
The wrong was only done to the corporation. Unequivocally. there would be tremendous legal difficulties.K.J. And of course.K. He isn’t responsible for it.com/international_law_primer. The company was incorporated in Canada. there is no guarantee that the State Department will argue on your behalf if you’re being screwed by another country. The U. The shareholders clearly suffered harm when Spain deliberately sank the company. He bets the firm’s ass on the Nikkei. Nor is it a “dominant/effective nationality” test. The loss of a shareholder’s investment therefore is not a legal wrong against the shareholder. simply drops its extradition request.htm < Source Document . Should Germany extradite him to the U. since Singapore can be a tad harsh in its punishments. How do you decide if a corporation is a national? Apply a different test than for people. so bye bye trader. Wherever its principal place of business is.K. when. Spain) (I. Barcelona Traction (Belgium v. (Unless there’s an international agreement to that effect in place already. a corporation is clearly distinct from its shareholders. Say a citizen of the U. 1970) — Belgium wanted to exercise diplomatic protection for the shareholders of Barcelona Traction. Otherwise.. is a trader in Singapore. the state couldn’t intervene on behalf of the company. Still. to what extent.) Back to Table of Contents 36 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. a state is the sole judge of whether.K. Whether or not a company is a national depends on municipal law. Absent nationality. even if your company is registered in the United States and its principal place of business is in the United States. For that to happen. A shareholder is not personally liable for the corporation. The test is wherever the corporation is registered.International Law – a brief primer Nathaniel Burney Here’s a hypothetical situation. and loses. or to Singapore? The citizen would prefer to go to the U. No problem. and Germany happens to have an extradition treaty with Singapore. and for how long it exercises diplomatic protection. The test for nationality of a corporation is not a “general connection” test. He flees to Germany. but 88% of the shareholders were Belgians.C.burneylawfirm. Back to Table of Contents Corporations. the company had to be a national of Belgium.
Absolute power of the sovereign over its own territory. 37 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. Definitions.com/international_law_primer. Back to Table of Contents PRESCRIPTIVE JURISDICTION. So states make extradition treaties in advance. (This is important as hell. Entering another state’s territory without permission is a violation of that state’s sovereignty. Subjective — Did the legislature actually attach liability to conduct within its own borders? A crime was committed inside your territory. This is the power to send cops out after you. Objective — Did the legislature intend to attach liability to the conduct.burneylawfirm.htm < Source Document .) The power to prescribe is not questioned on your own territory. Passing a law criminalizing conduct in another state is one thing. Going to that other state and arresting you there is another thing entirely. Enforcement Jurisdiction. Regardless of where the crime’s results were consummated. JURISDICTION General Principles of Jurisdiction. Prescriptive Jurisdiction A legislature passes laws prohibiting conduct — criminal laws.” Judicial Jurisdiction. States can choose to give up little bits of sovereignty in this manner. But extraterritorial prescription can be a problem. This is the power to try and punish you. Also called “Executive jurisdiction. This power to pass laws to regulate conduct in your territory (and sometimes extraterritorially) is prescriptive jurisdiction. but was consummated here. of non-nationals? The crime began elsewhere. People doing business in Switzerland shouldn’t have to worry about the laws of other sovereigns to whom they owe no allegiance. outside the territory. Bases of Prescriptive Jurisdiction: Territorial — states can regulate conduct within their borders.International Law – a brief primer Nathaniel Burney VI.
he will be subject to Mexican penalties. 38 MicroBook Special Reprint Reprinted with Permission Source Document > http://www.) There was no problem finding such intent here. (Courts today say this must be a substantial effect. act abroad) the legislative history had to show that Congress intended the statute to be applied extraterritorially. Here. to prescribe the conduct of its citizens abroad. A foreigner can lose his visa to travel to the United States. Counter-regulation like this does happen. ALCOA (2d Cir. they had to have both the intent to affect commerce and the actual effect of their conduct. I know the labels appear mixed-up. etc. Some countries (like Mexico) say that if one of their citizens pulls out of the United States under Helms-Burton.burneylawfirm. 1 British. for example. The United States said all participants in this violated the Sherman Antitrust Act.htm < Source Document . (You don’t have to extend your jurisdiction unless you want to. just a business association.com/international_law_primer. has never been applied extraterritorially. There was no law against this in Switzerland. to monopolize aluminum and control its prices. Allows the United States. and foreseeable. as it would be a meaningless statute if you could get around it just by shifting your operations overseas. Nationality — prescriptive jurisdiction follows you abroad. fined.] United States v.) Helms-Burton Act — The law seeks to punish foreign countries that trade with Cuba.) (Not all laws have been held to apply extraterritorially. (effects in the US. The next question was whether the Constitution permitted it. 2 German.g. can get kicked out. And a United States court’s ruling won’t be upheld by a Mexican court. This was not a governmental association like OPEC.. which doesn’t say that it only applies to United States corporations. Passed because Cubans were shooting down planes that were in Cuban airspace .. In order for the statute to apply extraterritorially. but that’s the way they are used. planes that were leaving Cuba. 1 French.International Law – a brief primer Nathaniel Burney This can be problematic — how remote can the repercussions be from an act done in another country. 1 Swiss) formed an alliance in Switzerland under Swiss law. Murder. e. 1945) — Six international corporations (1 Canadian. The United States was trying to apply the statute to everything worldwide. and still have liability here? [Yes..
so far as the binding effect of the legislation is concerned. 1932) — Blackmer was a witness to part of the Teapot Dome scandal. whatever that was.burneylawfirm. Falsifying passports. and he is personally bound to take notice of the laws applicable to him and to obey them. He was subpoenaed in France to come back to the US and be a witness at the criminal trial. But the jurisdiction of the United States over its absent citizen. treason. Not just acts that offend sensibilities. United States (S. Crimes that violate the political/territorial integrity of a state. You don’t even need to look at the legislative history for intent. etc. 39 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. Ct. Not just acts that put some people out of a job. If Congress wants to regulate American citizens abroad. A federal statute gave the Attorney General power to subpoena witnesses from abroad. espionage.International Law – a brief primer Nathaniel Burney This can cause problems for you when the law of the United States conflicts with the law of the foreign country you happen to be in. as he wasn’t in the US. Blackmer objected to the service of the subpoena. Apply this in a very limited fashion.com/international_law_primer. such as bribery. One state has no right to mess with the affairs of another by passing laws governing the conduct of foreigners abroad (with the exception of reasonable international law principles). Protective — states can exercise jurisdiction over things that are inimical to the state itself.htm < Source Document . but first it must say it wants to. because the statute itself specifically said nationals abroad. counterfeiting money. Unless the legislature’s intent was otherwise. is a jurisdiction in personam. There are certain fundamental principles & interests that a state has a right to regulate. it can do so. and laid down the procedure for getting them. Blackmer is cited all the time when we grab nationals abroad for any of the 3000 federal crimes where the United States has expressed intent to get you abroad. he was in France. statutes are not construed to apply abroad. This holding is consistent with international law. Blackmer v.
anybody can prosecute.com/international_law_primer. however.S. no matter where they occurred. The Fawaz Yunis case (below under passive nationality) held that it is. Anybody can implement such laws. who the victims were. this basis of jurisdiction would make a mockery of the others. says ships have the nationality of the state whose flag they are entitled to fly. Code says the United States has jurisdiction over “any aircraft belonging in whole or in part to the United States. If you could catch them. Covers slavery. genocide. Chicago Convention on Civil Aviation.burneylawfirm. people that preyed on shipping.) The U. but terrorism is hard to define. you could prosecute them. Almost there on hijacking airliners. (Terrorists used to have loopholes they could take advantage of. Certain terrorist traits. This area of jurisdiction is only grudgingly and carefully extended. Maybe terrorism too. because it offends their sensibilities. as is the number of crimes that apply. Iran would be able to pass a law requiring all United States women to wear veils and not work. The laws of the flag nation apply to crimes committed on ships and planes. or 40 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. If not applied in a very limited way. Universal — for crimes that are universally bad. There are a very few certain crimes that are so universally abhorrent. it doesn’t matter where they were done. Jurisdiction over ships and airplanes registered under the state’s flag.International Law – a brief primer Nathaniel Burney The activity has to have been illegal where it was done. The powers of the state of registry have been expanding over time. There must exist a genuine link between the state and the ship. The flag country of an airplane is responsible for events on the plane wherever it flies. as many countries make most of their money from drugs. are being identified. how long ago you did it. while such aircraft is in flight over the high seas. and crimes against humanity. Enough states have signed agreements to that effect that this may well be now a universal crime. in addition to being inimical to United States interests.htm < Source Document . This began with piracy. Article 91 of the Law of the Sea Convention. and has jurisdiction over it. A stateless ship can be boarded by anybody. Doesn’t yet cover drugs. paragraph 1.
burneylawfirm. in 41 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. like conventions.30-cal shell casing in his grenade launcher and launched it. Well. a U. or it can be bilateral between two countries. Girard (U.htm < Source Document . Locals have exclusive jurisdiction if the act was off-base or against a local. Wilson v. and it went through a woman’s back). it depends on who has primary jurisdiction. If only United States law was violated.S. The agreement can be multilateral. ideally anyway. An agreement between the two countries provided that the United States might waive its jurisdiction over offenses committed in Japan by members of its armed forces.” — That’s pretty vague. The victim’s country may have passive-nationality jurisdiction. If only local law was violated. “Status of Forces” treaties — Apply United States law to American servicemen abroad.C. then the United States has exclusive jurisdiction. Girard. Does that refer to property ownership.) The person who did it is also under his country’s nationality jurisdiction.com/international_law_primer. citizen. (Note that this is from 18 U. If the crime was done in the territorial waters of another country. then the locals have exclusive jurisdiction. soldier.International Law – a brief primer Nathaniel Burney over any other waters within the admiralty and maritime jurisdiction of the United States.S. When an act is a crime both in the United States and in the foreign country where it happened. The United States has exclusive jurisdiction if the act was onbase or against a U. 18 means JAIL.S.S. This often fills in the holes when other sources of jurisdiction don’t work. as well as to the registration of the plane? Yes it does. Jurisdiction granted as a result of agreements. 1957) — the most oft-cited case in this area. rather than applying local law. S.Ct. wounded a Japanese woman during a military exercise in Japan (he stuck an empty . its laws also apply. A later agreement authorized that. We don’t want our guys put in local jails when we’re over there to help the locals. That’s why most foreigners don’t want Americans to own any part of their planes.
and rare.” There had been no prohibition against this. The United States still got jurisdiction. unless it expressly or impliedly consents to surrender its jurisdiction.S. This can be unpleasant and timeconsuming. It’s getting more popular.International Law – a brief primer Nathaniel Burney criminal cases where the right to jurisdiction is concurrent. and absent that the wisdom of the arrangement was left up to the executive and legislative branches. The Court held that a sovereign nation has exclusive jurisdiction to punish offenses against it committed within its borders. They had decided to waive jurisdiction and deliver Girard to the Japanese authorities. though. Girard tried for habeas. but it was denied.com/international_law_primer. your program probably isn’t going to work. and therefore the United States had the primary right of jurisdiction. Just work out an agreement on who had jurisdiction over what. on the ground that his act was done in the performance of his official duty. ultimately waived any jurisdiction it might have had. Fawaz Yunis (D. which provided that “the authorities of the state having the primary right shall give sympathetic consideration to a request from the authorities of the other state for a waiver of its right in cases where that other state considers such a waiver to be of particular importance. 1991) — The defendant was one of four hijackers of a Jordanian aircraft. But the U. Passive-nationality basis of jurisdiction (jurisdiction because the victim of the crime was your national) — new basis. The DOD appealed.o. United States v. especially with regard to tourism. The defendant was Lebanese. the military authorities of the United States would have the primary right to exercise jurisdiction over members of the armed forces for offenses arising out of any act or omission done in the performance of official duty. And without it. Then he asked for an injunction against delivery to the Japanese authorities. and who has first claims. etc.l. Work this stuff out before you start doing things in another country. and the plane was hijacked in a foreign country. Cir. and the injunction was granted. Japan’s cession to the United States of jurisdiction to try American military personnel for conduct constituting an offense against the laws of both countries was conditioned by the protocol agreement.htm < Source Document . The United States claimed the right to try Girard. 42 MicroBook Special Reprint Reprinted with Permission Source Document > http://www.burneylawfirm. but it is infinitely preferable to not having done it. so he was s.C.
then to Libya. Also. But here. Normally. air piracy.S.S. the fact that victims of a crime were Americans isn’t enough to give the United States jurisdiction over the criminal.S. or the hostages are Americans. If there were Americans on board. However. so a lot of terrorists are covered by them.com/international_law_primer. Libya has signed a lot of these conventions.burneylawfirm.C. that’s enough. More on jurisdiction over terrorism. No other state gets jurisdiction unless crimes are committed against or by a national (or even a permanent resident) of that state. and Montreal 1971 — Tried to define illegal acts on international flights. After two years in France. Hostage-Taking Act 18 U. 1203 gives us that jurisdiction here. Charming Betsy being cited again. Because he lived permanently in France over the last 2 years. Article 4 of the Tokyo Convention 1963 said that only the state of registration has jurisdiction. Then he goes to France. If the entity being threatened is the United States. 43 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. This opened up passive-nationality jurisdiction. the U.htm < Source Document . France can assert jurisdiction even though he isn’t a national. under the Air Piracy Act. a state may punish non-nationals for crimes committed against its nationals outside of its territory. Hague 1971. Under the passive-nationality principle. then the U. and he goes to the Bakaa Valley to become a terrorist. Tokyo Convention of 1963. he commits a terrorist act in Germany. at least where the state has a particularly strong interest in the crime.International Law – a brief primer Nathaniel Burney He was brought before a magistrate for conspiracy. and hostage taking. A boy born in the West Bank becomes an orphan when his parents are killed. A couple of Americans on the plane were taken hostage. it doesn’t even have to have been an American plane. law applies. the court said that you don’t construe laws to conflict with international law if a nonconflicting construction exists. then tried to elaborate who has jurisdiction over events happening on the plane. Then he goes to Syria for a bit. The defendant said that these laws exceeded the bounds of extraterritorial jurisdiction under international law.
Enforcement measures must be reasonably related to the laws or regulations to which they are directed.com/international_law_primer. In cases of overlapping jurisdiction.International Law – a brief primer Nathaniel Burney Article 6 & 7 of Hague 1971 says that when a terrorist ends up in your territory. Note. BIG SOURCE OF SCREWUPS. You cannot be forced to extradite someone unless you already agreed to. the fact that your ass is in Burundi doesn’t mean that Burundi has jurisdiction over you. A state may employ judicial or nonjudicial measures to induce or compel compliance or punish noncompliance with its laws or regulations. provided it has jurisdiction to prescribe. then they don’t have jurisdiction over you unless there is some other basis. Punishment for noncompliance must be preceded by an appropriate determination of violation. 1979 Convention Against Hostage-Taking. Articles 6 & 7 of Hague 1971 are exceptions to this rule. you must detain him.burneylawfirm. A state may employ enforcement measures against a person located outside its territory: 44 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. Oh. Enforcement jurisdiction is separate from the other kinds of jurisdiction (prescriptive and judicial). there is also another universally-signed convention giving you jurisdiction over crimes committed against your diplomats.htm < Source Document . All countries have these various kinds of prescriptive jurisdiction. If you didn’t commit a crime there. and then either extradite him or try him yourself. Restatement (Third) § 431 — Jurisdiction to Enforce. Back to Table of Contents ENFORCEMENT JURISDICTION. The United States has jurisdiction even if there is no connection with the United States other than that the terrorists want prisoners who are held in the United States released. and must be proportionate to the gravity of the violation. but a country has to want to assert that jurisdiction. Don’t mix them up. which state gets to assert it first is usually up to whoever has possession of the suspect. Your state has jurisdiction over crimes committed by stateless people who are residents of your state.
The suspect has to be in one of these places: -. and shipped him to Israel.International Law – a brief primer Nathaniel Burney --if the person is given notice of the claims or charges against him that is reasonable in the circumstances. ordinarily in advance of enforcement. We go out of our way to respect other countries’ sovereignty. -.On the high seas. if the state has jurisdiction to adjudicate. and executed. when then went into international waters. (The South American countries were popular with former Nazis. There was another guy named Eichmann.S. he was quickly (and violently) arrested. convicted. Mr. drugged him.Aboard a ship flying your flag. whether in person or by counsel or other representative. but they are preferable to violating another country’s sovereignty. But first.Aboard a ship that permits you to board. he was tried. Instead. Americans are dead because of them. At mile 13. There is no question that we have prescriptive jurisdiction over someone who killed Americans. put him in a box. -.In a country with which you have an extradition treaty. (That’s the Ker-Frisbie doctrine). then there is no violation of international law. territory we would have had jurisdiction over him. You need permission to take the suspect from the other state’s territory. and once he was physically in U. ship. Ruses don’t always work. and --when enforcement is through the courts.htm < Source Document . because they didn’t have extradition treaties. He had spent most of his life in countries unfriendly to the United States.S. the foreign sovereign must object.burneylawfirm. -. There. we set up a clever ruse to lure him onto a U.) Some Israeli nationals kidnapped him. who was an evil Nazi now hiding in Argentina. We might have sent in the Delta Force to grab him. --if the person is given an opportunity to be heard. These rules are real.com/international_law_primer. but whether or not we have enforcement jurisdiction is another matter entirely. If it consents. 45 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. Yunis again. You need explicit permission to go onto another country’s territory to enforce your own laws. Kidnapping a felon is a no-no.
The French got upset. The Turks argued that jurisdiction is inherent in sovereignty. Terrorists hijacked the ship. and the P. said that if the State of Israel was involved in the kidnapping. The French contended that the Turks had no right to assert their jurisdiction over officer Demons. But before anything was done about it. They committed many serious crimes. The Turkish ship sank. The U. they said. Two ships collided on the high seas in the Mediterranean on a dark murky night.S. So who had jurisdiction? Conventions have filled in the holes. and the other was French. The victim’s country had jurisdiction. One ship was Turkish. but some Turkish sailors had been killed. said that fact was so obvious that they wouldn’t even discuss it. then there would have been a problem.C. and that both states had concurrent jurisdiction over the matter.N.C. or if it violated the Hostage-Taking or Hijacking conventions. If the crime were one of the rare universal crimes. Lotus (P. Now. and it is unknown what their nationality was.J. and Israel admitted that it had committed an offense.International Law – a brief primer Nathaniel Burney Argentina was not pleased with the kidnapping part. He was fined and sentenced to 80 days in a Turkish prison. the events took place on both the French and the Turkish ships. and the two countries agreed to international arbitration. which state gets to assert its jurisdiction first is usually up to whomever has possession of the suspect. The Court finally held that there was no rule of international law prohibiting a state from exercising enforcement jurisdiction over a foreign national who committed acts outside the state’s borders. and thus only the French had enforcement jurisdiction over the alleged crime. 1927). an Italian ship called the Achille Lauro was on the high sea. The Court held that the French had the burden of proving that there was a rule against the Turks having jurisdiction. The French also argued that you cannot assert your jurisdiction beyond your borders. Back to Table of Contents Conflicts of Jurisdiction. so Turkey was entitled to exercise its jurisdiction. and the French ship picked up the survivors. 46 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. The Turks said that was b. then the country with physical custody of the perpetrator has jurisdiction. and Officer Demons was arrested and blamed for negligently causing the accident. The perpetrator’s country had jurisdiction.com/international_law_primer.I.. The French argued that Officer Demons’ acts took place on a French ship.s.I. Argentina withdrew its objection.htm < Source Document .burneylawfirm. including the murder of an American who was in a wheelchair. and that the French did it all the time and had always done so. under the French flag. In cases of overlapping jurisdiction. The ship’s flag country had jurisdiction. The passive nationality of the Turkish victims wasn’t a basis for jurisdiction. many years later. S. The French ship put into port in Istanbul.J. and Officer Demons was then physically located in Turkey.
htm < Source Document . Not that this treaty has been complied with by Mexico. What happens when the United States says you violate U. and some F-14s intercepted the plane and forced it down over the high seas. he only argued that the U. who were then surrounded by Italian troops. 1992) — A DEA agent was tortured over several days. In the United States. Humberto Alvarez-Machain (S. if the abduction was accompanied by brutality.-Mexico extradition treaty was violated.) But Egypt didn’t extradite the terrorists. How could the United States get jurisdiction over them? By EXTRADITION (see below. The United States still doesn’t abduct foreign criminals on a general scale. we get them by deception and ruses. 47 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. Here. Ct. But. except under these conventions. But that’s irrelevant. (On remand. the lower court still let the guy go. The DEA put out a bounty on the doctor. the United States is the best at intercepting communications.com/international_law_primer. Of course. That was a really bad tactic to take. and made it land in Italy. mere possession of the suspect is not enough to grant jurisdiction. the fact that you were illegally seized doesn’t mean that you still can’t be tried. in light of the 1992 Supreme Court. The plane was surrounded by U. but they took responsibility. Italy ultimately got control of the bad guys. There was no provision like that in the treaty. so he lost. Some Mexicans kidnapped him and brought him to the United States. Usually. Also. So the terrorists fled the Achille Lauro and went to Egypt. law if you trade with Cuba. and Mexico says you go to jail if you obey the U. Lots of murders and rapes in California go unpunished. law? You’ve got overlapping jurisdictions with conflicting laws. because the perps go to Mexico. Ct.) The doctor didn’t argue that customary international law applied.S. and he fled to Mexico. Then Egypt secretly put the terrorists on a plane. and then they let them go! United States v.S. The Hostage-Taking and Hijacking conventions say that the country with possession must either try the suspect there or extradite him for prosecution elsewhere. They let them stay in the country.S.burneylawfirm.S. extradition only results from an extradition treaty or the sovereign's choice. said the abduction was legal.S. and a Mexican doctor involved in torture kept the agent alive throughout the ordeal so the torture could continue. the U. troops. The DEA didn’t do the kidnapping.International Law – a brief primer Nathaniel Burney Otherwise. S.
court held the bank in contempt. you can’t be extradited without a treaty. 48 MicroBook Special Reprint Reprinted with Permission Source Document > http://www.000 per day until they complied.” That’s when a court steps back and recognizes that another country has a more fundamental national interest at stake than what is at stake here. or violate Egypt’s sovereignty and grab them ourselves.htm < Source Document . assert any of these: -. but its officers would go to jail in the Bahamas.What you did isn’t a crime in the country you’re in now. and the bank didn’t really try to get the information released. The Court said that nobody would have really gone to jail. where the secrecy laws prohibit banks from releasing depositors’ info. United States v. Field (S. In the case of the Achille Lauro.burneylawfirm. A Florida grand jury was convened to investigate some drug lords. so the United States had to either convince Egypt to voluntarily give us the perpetrators.International Law – a brief primer Nathaniel Burney United States v. Wham. The U. 1982) — A Canadian bank opened an office in the United States.com/international_law_primer. This involves also the idea of “comity. Back to Table of Contents Extradition No matter how heinous the crime. The bank had a branch in the Bahamas. there were not yet any hijacking/terrorism treaties requiring extradition. and it subpoenaed the bank for information on certain depositors. It first argued that this was a real violation of Due Process. the 11th Circuit held that the United States’ interest in getting the drug lords was more fundamental than the Bahamian interest in account privacy. Requirements for Extradition. This bank appealed to the 11th Circuit. 1976) had applied a balancing test — which country’s interests outweigh the other’s? Here.S. The bank wanted to comply. So they didn’t. To successfully object to your being extradited. It was therefore subject to personal jurisdiction in the United States. and fined them $100. Bank of Nova Scotia (11th Cir.Ct. Such situations create nightmares for corporations. where the terrorists had killed an American on an Italian ship on the high seas and then fled to Egypt. Every corporation out there should be aware of the web of conflicting laws.
It was a political crime — Need to show (1) it was a political offense.You haven’t had a hearing first to determine whether there is enough evidence — under the law of the country you’re in now — to hold you to stand trial.Violations of the 1971 Hague Convention. -. If you are extradited. So a terrorist who uses a knife or boxcutter instead of a gun may be trying to benefit from this loophole.Hostage-taking.International Law – a brief primer Nathaniel Burney -. You can be extradited to a third-party country. just so long as it has an extradition treaty with the country you’re in.Offenses against a diplomatic agent or any other internationally-protected person. -. -.htm < Source Document . There is no obligation for a state to extradite its own nationals. bomb. and (2) your actions were politically motivated. -.You haven’t yet had a hearing to determine whether you are the same person who is wanted.It isn’t a crime specifically listed in the extradition treaty (treaties usually cover all crimes punishable by more than 1 year in prison). -. Back to Table of Contents 49 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. This is the loophole that terrorists try to use.com/international_law_primer. you have to be tried for the same crime for which you are extradited. etc. rocket.Actions on an airplane. Note: Knives are not listed.Offenses using a grenade. -. automatic weapon.burneylawfirm. The European Convention on the Suppression of Terrorism lists a number of things that cannot be political-offense exceptions: -. firearm. -.
The United States can’t sue Russia in U.com/international_law_primer. that caused problems all around the world. etc. Dralle sued for trademark infringement.International Law – a brief primer Nathaniel Burney VII. 1812) — United States ships were stolen by the French and converted to warships. and is part of modern customary international law. But there was nothing the United States could do. or is it commercial? This view of immunity is codified at 28 U. Sovereign immunity used to be absolute. IMMUNITY FROM JURISDICTION Sovereign Immunity and the Act-of-State Doctrine. So check out the kind of action involved — is it an official or public act. 50 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. courts unless Russia agrees to it. Foreign Sovereign Immunities Act 28 U.S. Semi-official / semi-public entities pay big bucks to lock in their status here. and the owner recognized them and sued to have them returned. investing.S. This was a classic example.S. § 1602. that’s called war. The Schooner Exchange v. their immunity has gotten less and less absolute.S.§ 1330. McFaddon (U. a foreign government’s activities in the United States are exempt from U. If a warship comes in without your permission. but they do get involved in financial dealings. and started selling them under the Czech national name.S.C. Private individuals don’t own warships. but as states have gotten more directly involved in commerce. because warships are floating pieces of immunity. jurisdiction. Unless the Act says otherwise.burneylawfirm.Ct. Sovereign Immunity.Ct. The Czechs said that selling cosmetics was an official government function. Sovereigns cannot exert jurisdiction against other sovereigns without their consent. Even if a citizen is raped on board in the harbor. you can’t prosecute the crime.S.htm < Source Document . The communists seized Dralle’s perfumes. it is immune from your jurisdiction. and therefore they were entitled to sovereign immunity from lawsuits here. Dralle v. of Austria 1950) — When the communist countries started nationalizing commerce. Republic of Czechoslovakia (S. They came to New York harbor in a storm.C. If you let a warship into your territory. buying perfume. The Supreme Court of Austria looked at customary international law and saw that a state is not immune when its acts are commercial.
If a diplomat runs over a pedestrian. But. Participation in wills and estates in the U. It is okay within the Foreign Sovereign Immunities Act to sue the foreign government or the individual.S.: The state waived immunity. rather than by reference to its purpose. It created bonds.S. When it came time to pay. Argentina decided to refinance. Applying the Foreign Sovereign Immunities Act is not snag-free. Republic of Argentina v. An act elsewhere. then there is no sovereign immunity. The payments would be made not in Argentina.burneylawfirm.S. but with a direct result in the United States. See below. under the terms of which the principle and interest would be repaid in U. Weltover. (U. So you still couldn’t sue. An act in the United States connected with a commercial activity elsewhere.htm < Source Document . The State Department goes to the mat on this all the time.” Specifically defined in § 1603(d): “either a regular course of commercial conduct or a particular commercial transaction or act. oft-cited cases here are Weltover and Amerada. Selling cosmetics to advance justice for the global proletariat is still selling cosmetics.com/international_law_primer. not its purpose. Two beautiful.” The definition looks at the nature of the act. Commercial activity in the United States. Any case where money damages are claimed for tortious acts.Ct.International Law – a brief primer Nathaniel Burney General exceptions to sovereign immunity in the U. the Vienna Convention on Diplomatic Relations gives immunity to diplomats. dollars. Case involves rights to immovable property in the United States. The main exception is “commercial activity. Inc. not in pesos. but in other financial 51 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. connected with a commercial activity elsewhere. The commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act.S. so long as the tort occurred inside the U.S. 1992) — Argentina borrowed money.S.
courts (that’s why NYC was chosen).burneylawfirm. economic policy.. Argentina issued a presidential decree substituting other instruments for payment. under § 1605(a)(2). etc. The act must take place outside the United States. And the act must have caused a direct effect in the United States. Argentina didn’t pay. Whether there was a profit motive or a public-interest motive.htm < Source Document . and gardenvariety deadbeat refinancing. so it was immune from U. it doesn’t matter. That was commercial. Argentina said the whole thing — setting up the bank. Zurich. not commercial.S. The nature of the activity governs. The act must be in connection with a commercial activity of Argentina outside the United States. U. For the “commercial activity” exception to apply. terrorize. banks (ever stupid) accepted this. See below. But Panamanian corporations and Swiss banks refused to go along with the rescheduling.. courts. It is the only way. or Frankfurt). you cannot sue them in U. That’s something else entirely. — but unless there is an exception under the Act. and unilaterally extending the term. etc.com/international_law_primer. London.S.International Law – a brief primer Nathaniel Burney markets chosen by the creditors (New York. and got sued in U.S. kill. refinancing. so there was no sovereign immunity. NOTE: They weren’t claiming immunity under the Act of State doctrine. When the bonds came due. The Foreign Sovereign Immunities Act is the “sole basis” for obtaining jurisdiction over a foreign sovereign in the United States. issuing the bonds. The Supreme Court responded that the purpose is irrelevant. An act that would have been immune as a sovereign activity would be regulation of currency — a 52 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. jurisdiction. — was all governmental. They can do bad things — maim. Argentina said issuing bonds was an official public act.S.. and insisted on full payment to be made in NYC. And these were garden-variety debt instruments. torture.
Cir. providing the ship’s name.com/international_law_primer. v. they could exercise the bonds in NYC. 1988). Six minutes later. the “Hercules. and equipment between the United States and Iran. About 45 minutes later. engineering data. another Argentine military plane began to bomb the Hercules. Inc. 1990).burneylawfirm. it matters only that it did so.C. the statute unmistakably commands that to be done.C.” between Argentina and the Falkland Islands during the war.S. position. (U. lawyer who drafted the bond instruments made NYC the place of payment. However difficult is may be in some cases to separate the purpose of the activity from its nature. 1989) — A Liberian shipping company had to float an oil tanker. Cir. the complaint alleged a constant flow of capital. an Argentine military aircraft began to circle the Hercules. the ship’s master made a routine report by radio to Argentine officials. So was there an immediate consequence in the United States? Sure. The court ruled that Iran’s alleged wrongful conduct was commercial and also found the requisite direct effect under the third clause of § 1605(a)(2). Argentina purposely availed itself of the privilege of conducting activities in the United States. in which it found the circumstance that the plaintiff had not received the contractually-stipulated payment for work done in Saudi Arabia after his return to the United States wasn’t an effect in the United States as required by statute. In Foremost. and the captain of the ship radioed his presence. Iran pleaded sovereign immunity. The brilliant U. course.S.Ct. Then the ship was attacked repeatedly by Argentinean warplanes. international call sign. It is something an individual cannot do. so there was a direct effect.S. speed. Kingdom of Saudi Arabia (D. who acknowledged receiving it. registry.International Law – a brief primer Nathaniel Burney uniquely governmental act. The Islamic Republic of Iran (D. So even though the Panamanian corporations and Swiss banks had no dealings at all in the United States. The master immediately hoisted a 53 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. Amerada Hess Shipping Corp. The court distinguished this case from Zedan v. It is irrelevant why Argentina participated in the bond market in the manner of a private actor. machinery. The ship’s master repeated his earlier message by radio to Argentine officials. Argentine Republic v. Argentina said it was okay to pass. so it is a government activity even though it is an economic activity. At 12:15 GMT. In Foremost-McKesson. without provocation.htm < Source Document . and voyage description. the American plaintiff brought an action against Iran asserting that Iran had used its majority position in an Iranian corporate joint venture wrongfully to deprive plaintiffs of benefits to which it was entitled. The company told the belligerents about it. management personnel.
The Foreign Sovereign Immunities Act has an exception for torts. A neutral ship on the high seas shouldn’t be attacked. But the Alien Tort Statute is not an independent ground for suing a foreign government. 2 tank. but only if that tort occurs inside the United States. Argentina was definitely involved. public international law was violated. and that an undetonated bomb remained lodged in her No.S. there was no lawsuit in the I. This is a very important case. However. Liberia is a country where the government isn’t going to pick up the phone.International Law – a brief primer Nathaniel Burney white flag. the nearest safe port. After an investigation by the Brazilian Navy. because bullets are probably flying through the room where the phone is ringing. Saudi Arabia (U.burneylawfirm. and a third attack came about two hours later.. So they sued in the United States courts. and textbooks get the outcome wrong.J. Congress intended the exception to have this limitation. This was definitely an official act.Ct. the Hercules reversed course and sailed to Rio de Janeiro.com/international_law_primer. There had to be an exception to the Foreign Sovereign Immunities Act to sue. It was bad deed. it wasn’t necessarily a case that could be brought in the United States. they decided it would be too hazardous to remove the undetonated bomb. Even though the bombing was clearly illegal under international law. And Liberia doesn’t get involved anyway. They sued under the Alien Tort Statute. Certainly. and a couple of weeks later the ship was scuttled 250 miles off the Brazilian coast. the ship was determined to have suffered extensive deck and hull damage.htm < Source Document . It turned out that there was no exception to the Foreign Sovereign Immunities Act here. Here. when an Argentine jet struck the ship with an air-to-surface rocket. but the United States courts couldn’t do anything about it. Nelson v. so be careful! 54 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. So the United States had no jurisdiction. 1994) — An American plaintiff sued Saudi Arabia to recover for his detention and torture in Saudi Arabia. Disabled but not destroyed. as in Filartiga. At Rio de Janeiro.C. A second bombing soon followed. because the ship was Liberian.S.
or vice versa. but that’s not necessarily so. and the suit was against the country. An act of state is not necessarily the same thing as an actus imperius for Foreign Sovereign Immunities Act purposes. The 11th Circuit said in 1991 that the action was “based upon” a commercial activity — the plaintiff’s recruitment — carried on in the United States. This was an action by the Saudi government.S. Other countries may or may not have similar rules. based on separation of powers. Rule — Whether or not the laws of another state are to be respected in a U. The courts have decided not to get involved. court. but he was detained and tortured in retaliation for reporting safety violations.burneylawfirm. There may be the occasional overlap. so they leave it entirely up to the executive. then this doctrine doesn't apply. It is neither required nor barred by international law.S. Mistreatment in foreign prisons is a governmental official act. Was it an act of state? If a state does something that is not a state act. and the suit was against the person who did it. which is a requirement of international law.International Law – a brief primer Nathaniel Burney The plaintiff alleged that he had been recruited in the United States as a monitoring systems engineer in a Saudi hospital. This was not a case where the government denounced the actions. Back to Table of Contents Act of State Doctrine. holding that recruitment and hiring were not commercial acts related to the detention and torture. You have to assess whether it was an act of state. Comes into play only when the issue is whether the laws of another state are to be respected in a U. Unlike foreign sovereign immunity. So Saudi Arabia was immune from suit in the U. The reason is they don’t want to say a foreign law is bad while the President is saying it’s good. the Act of State doctrine is purely a municipal policy of the United States. Comes into play when the litigants are both private individuals or entities (nobody is suing a state or a state official). court is a decision left up to the executive branch (the State Department). 55 MicroBook Special Reprint Reprinted with Permission Source Document > http://www.S.htm < Source Document . The Supreme Court reversed.com/international_law_primer. They don’t want to get involved in the executive’s application and determination of foreign policy.
Banco Nacional.burneylawfirm. done within its own territory.S. Bernstein exception — If the foreign act was so odious that the State Department begged the U. This was not a suit against Cuba. Supreme Court didn’t want to assess whether an act by a foreign government was contrary to international law. Sabbatino (S.International Law – a brief primer Nathaniel Burney (There are many things that states do that the Foreign Sovereign Immunities Act doesn’t cover.com/international_law_primer. “Rather than laying down or reaffirming an inflexible and allencompassing rule in this case. and the courts of one country will not sit in judgment on the acts of the government of another. Farr Whitlock entered into a new agreement to buy the shipload from the Cuban government. Farr Whitlock gained possession of the shipping documents and negotiated them to its customers. 1964) — In retaliation for an American reduction in the import quota for Cuban sugar. Farr Whitlock. because the expropriation violated international law. (Recall that it is very difficult to define what is and isn’t illegal confiscation in international law. even if the complaint alleges that the taking violates customary international law. courts to please make this assessment. Banco Nacional sued Farr Whitlock for conversion of the bills of lading and also sought to enjoin Sabbatino. an American commodities broker.) Banco Nacional de Cuba v. Farr Whitlock defended on the ground that title to the sugar never passed to Cuba.htm < Source Document . had contracted to buy a shipload of CAV sugar. which assigned the bills of lading to its shipping agent. protected by CAV’s promise of indemnification. but. which was nationalized enroute. Farr Whitlock turned the proceeds over to CAV instead of Cuba. in the absence of a treaty or other unambiguous agreement regarding controlling legal principles. 56 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. To obtain the now-nationalized sugar. But they’re only going to consider the State Department request — they aren’t necessarily going to acquiesce.” That is a broad statement. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves. and it no longer holds water in expropriation cases.) The case never got to the merits. because the U. the temporary receiver of CAV’s New York assets. It was an argument over who had title to the sugar (who the broker should pay). CAV said it had title because the confiscation under Cuban law was illegal under international law. from disposing of the proceeds.” “Every sovereign state is bound to respect the independence of every other sovereign state. extant and recognized by this country at the time of suit. the Cuban government nationalized many companies in which Americans held interests. including Comañia Azucarera Vertientes-Camaguey de Cuba (CAV). we decide only that the Judicial Branch will not examine the validity of a taking of property within its own territory by a foreign sovereign government.S.Ct. then maybe the courts would. CAV or Banco Nacional.
Apart from expropriation of property on the sovereign’s own territory. There may occasionally be overlap.burneylawfirm. Therefore. after Daza instructed the Philippine National Bank to dishonor a letter of credit issued by the Republic of the Philippines to Chuidian. Hickenlooper only affects this narrow context.com/international_law_primer. then the Act of State doctrine doesn’t come into play. suing the individual is the practical equivalent of suing the state. In such a circumstance. a Philippine citizen and an official of the Philippine government. Back to Table of Contents Immunity of State Representatives. however. They must be honored.htm < Source Document . 1990) — Chuidian. Philippine National Bank (9th Cir. Remember that the Foreign Sovereign Immunities Act doesn’t cover many evil things that states do. If a state does something that is not a state act. the Act of State doctrine is alive and well in the United States courts. Suing an official for purely official acts is really the same as suing the government he works for. That law was odious. a Philippine citizen. then he is immune if the state would be immune if the state was being sued. you must assess whether it was an act of state. Chuidian v. the Foreign Sovereign Immunities Act doesn’t cover individuals. And that property was within its own territory. An act of state is not necessarily the same as an act imperii for Foreign Sovereign Immunities Act purposes. Nevertheless. If a foreign country seized property. or else the world financial system would collapse. Then the U.S. They’re how international dealings are financed. courts must assess the legality of the expropriation unless the State Department begs them not to. but that isn’t necessarily so. sued Daza. Letters of credit are better than cash. Sabbatino has been overruled by the Hickenlooper Amendment.International Law – a brief primer Nathaniel Burney The only time they even got close to doing this was when the German Reichstag confiscated Jewish property. then the Act of State doctrine doesn’t apply. when he did it on behalf of his government. 57 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. If an individual is sued for actions he did in his official capacity. Ask: What is the entity being sued? Is it an entity entitled to foreign sovereign immunity? If the dispute is between two non-state entities.
An official government commission tried to find all the wealth he had stolen from the Philippines and bring it back. A diplomatic agent’s correspondence is also inviolable. Depending on the legal status of the individual involved. the way a person or some property is treated varies. then that individual is immune. If your problem concerns a consular official. on behalf of the state.burneylawfirm. or dignity. He shall not be liable to any form of arrest or detention. freedom.International Law – a brief primer Nathaniel Burney Marcos cut an unethical deal. The receiving state shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person. no matter what he does. there’s another convention. then a suit against Daza is the same as a suit against the sovereign. If a state official is acting within his official capacities. If he had been acting within his official capacity. His property is also inviolable. except in the case of: 58 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. The private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission. not even detained the slightest bit. The bank sued Daza in California federal court. the Foreign Sovereign Immunities Act does apply here. Article 29 — Inviolability of the person. etc. payable by the bank (located. He cannot be arrested.com/international_law_primer. by the way. Therefore. in California). consular officials.htm < Source Document . their families. Commissioner Daza ordered the bank not to honor the letter of credit. Consular officials are not covered by this one. and if he was acting on behalf of the government. So you have to sort out the legal status of everybody involved — Ambassadors. Then Marcos got kicked out of office. the 9th Circuit held. issuing a letter of credit to an underling. Vienna Convention on Diplomatic Relations — Signed by pretty much everybody (173 out of 180). Article 30 — Inviolability of the person’s residence. The person of a diplomatic agent shall be inviolable. Article I describes who is covered by this convention. Diplomatic Immunities. the various levels of staff.
water. a lawsuit over a decedent’s estate. so it may not be all that much of a deterrent. and there’s nothing the cops can do. A diplomatic agent is not obliged to give evidence as a witness.C. summer without air conditioning or water. Even if the act was not part of his official duties. You are. an action relating to professional or commercial activity. A diplomatic agent is immune from the criminal jurisdiction of the receiving state. Article 31 — Immunity from jurisdiction. an action relating to professional or commercial activity. a lawsuit over a decedent’s estate. you are entitled to shut off their gas. Even if one of these exceptions applies. electricity. He is immune from civil and administrative jurisdiction. But if they don’t pay their bills. against your will. performed in the receiving state.burneylawfirm. This is not necessarily a good thing. you still cannot exercise your jurisdiction over him if that involves infringing the inviolability of his person or residence. The diplomatic compound is inviolable. It is territory of the state where it is located.International Law – a brief primer Nathaniel Burney an action concerning private real estate in the territory of the receiving state. It’s good when you’re being chased or need a safe haven for some other reason. outside his official functions. outside his official functions. (Of course. except in the case of: an action concerning private real estate in the territory of the receiving state. 59 MicroBook Special Reprint Reprinted with Permission Source Document > http://www.C. You might be inside the compound of a foreign mission here in D. outside the jurisdiction of the receiving state when you are on the diplomatic compound. however.htm < Source Document . performed in the receiving state. etc.com/international_law_primer. people from some countries feel right at home in a humid D.) The land on which a diplomatic mission is located is not sovereign territory of the sending state.
All you need to know is that consular officials are only immune from jurisdiction when they were acting in their official capacity. but shot a policewoman in the head. A whole bunch of people were protesting outside the Libyan embassy in London. and opened fire with machine guns. Article 37 — Family and Staff. The sending state can waive the immunity of a diplomatic agent. For someone enjoying full privileges and immunities. The 60 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. staff. killing her. They missed the protestors. The diplomatic agent’s household family has the same privileges and immunities as the agent himself (unless the individual is a national of the receiving state). the personal baggage of a diplomat is also exempt. the worst that can happen to you is to be “P. Under Article 36.com/international_law_primer.International Law – a brief primer Nathaniel Burney The immunity of a diplomatic agent from the jurisdiction of the receiving state does not exempt him from the jurisdiction of the sending state.G. Vienna Convention on Consular Relations. Article 27 concerns the diplomatic bag.htm < Source Document . Simply goes through without any problem. etc. The administrative and technical staff (and their households) (but not nationals of the receiving state) have the same immunities as the agent. except: The civil and administrative immunity only covers acts performed in the course of their duties. The service staff (but not nationals of the receiving state) have criminal/civil/administrative immunity only for acts performed in the course of their duties. Privately-employed servants and other private members of the mission who aren’t employed by the sending government only enjoy the privileges and immunities granted to them by the receiving state. his family. with a couple minor exceptions. A famous abuse of diplomatic immunities occurred when a British policewoman was killed by a member of the Libyan consular staff in the mid-80s.burneylawfirm.-ed” — sent home as persona non grata. States can agree to grant greater immunity to consular officials if they want to. Article 32 — Waiver of immunity. The Libyans decided to deal with the protestors the way they did back home. The British police surrounded the embassy to protect it from the protestors. It can be as big as a truck.N.
he’s got to do it all. because of their diplomatic immunity. However. Consular officials often get diplomatic duties. The courts jealously protect this power of theirs. you saw posters saying what a bad guy this citizen was. Arcaya v. The State Department can permit shared functions if it wants to. impugning someone’s honor is a really big deal. so there is some overlap.com/international_law_primer. so he was not immune from a suit for libel. from Venezuela. But diplomatic officials are very jealous of their important functions. Only the courts can decide whether a person was acting within his authority or not. they can’t have both diplomatic and consular offices in the same place. The basis is that diplomatic and consular officials have incompatible roles.S.N. 1956) — The consul general of Venezuela in New York was spending his time publicizing the bad acts of a private Venezuelan citizen.htm < Source Document . Back to Table of Contents 61 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. All the British could do was declare them PNG and kick them out of the country. In order to invoke your immunity: You have to request immunity. The State Department was infuriated by this case. What do the courts do here? Only the courts can decide what a person’s legal status is for immunity purposes. In South America.Y. it isn’t automatic. and this was not part of his official duties. So the private citizen sued the consul general for libel. scot-free. He was only a consular official. So you’re either one or the other.burneylawfirm. This was intended to (and did) serve to completely immunize him from the civil jurisdiction. Páez (S. the consular official was elevated to diplomatic rank as the U. If you came in the consular office. of constitutional import. the moment he would lose his diplomatic status. and you can’t just switch. So the State Department put its foot down and said a country’s mission can either be consular or diplomatic. You have to be on the list of immunized people.International Law – a brief primer Nathaniel Burney Libyans got away with it. because this meant consular officials who got in trouble could get out of trouble by being elevated to diplomatic status. You have to have been recognized as somebody entitled to it. But if the consular official is the only guy there.N. The courts jealously protect this power of theirs. the case could be resumed. representative to the U. While the trial was pending.D. because the action had been begun while he was but a consular official.
it would pave the way for increased power of nongovernmental organizations over the U. The United States signed the Law of the Sea Convention.S. Intelligence collection.International Law – a brief primer Nathaniel Burney VIII." It's Unnecessary -. would have power over U.it would require all unmanned ocean vessels. Agency-created laws based on treaties could be enforced against the U.the laws passed by US citizens would be endangered through conservation provisions. but the United States' rights are not threatened by anyone. the United States considers most of the provisions of the Convention to be customary international law. Internationalizing Domestic Law -. Undue Restriction on Military Activities -. President Ronald Reagan issued an executive order that treats the 1982 version of the Convention as binding except for the mining provisions. to navigate only on the surface in territorial waters. to pay taxes to the U.htm < Source Document . and other sovereign nations. 62 MicroBook Special Reprint Reprinted with Permission Source Document > http://www.the Convention would force U. Arguments against the treaty include: National Sovereignty -. legal authority. agency that is not democratically elected.the treaty is promoted as a codification of navigation rights through straits. it sits apart by itself. and there has been a vigorous debate in the Senate for many years. THE LAW OF THE SEA Introduction. including submarines that protect ships by detecting mines. The U. Bad Precedent -.S.the treaty limits US military activities significantly.S. businesses to turn over their technologies to other countries. but has not yet ratified it.com/international_law_primer.N. has already accepted much of the treaty by way of the U. Charter and the 1958 Geneva Conventions. This is a discrete area of international law. the Convention would force the U.S. Nevertheless. which allow foreign organizations to change US environmental law through legal action in international and domestic courts.N. and the boarding of ships for anti-terror purposes are restricted by the Convention. This eliminates their value for such purposes. and we abide by them.N. submarines in coastal waters.S.a U.S. Unfair Redistribution of Technology -. Furthermore. It is governed by the Law of the Sea Convention. Articles 88 and 301 appear to restrict all military operations entirely. with its own court and bureaucracy.burneylawfirm. Prevents Safety Measures -. limiting the sea to "peaceful purposes.
The sovereign has exclusive jurisdiction over everything within its borders (including lakes and rivers). might have been successfully ratified as a treaty unto itself. The Law of the Sea Convention is a compromise of many competing interests. the more rights ships have and the fewer rights the coastal state has.) Land Territory. while the coastal states have territorial claims over often vast stretches of ocean. it gives already-friendly countries a peaceful alternative to already-peaceful options.N. waters. It is not useful. Essentially. The Law of the Sea in general is the result of an eternal contest between the seafaring nations and the coastal states. It is getting more and more important for a lawyer to know the rules out there on the ocean.htm < Source Document . and gives no help to non-party countries like Iran and the U. This dispute has been going on at least since the rise of the nation-state and Grotius’ development of international law back around 1648.S. The purpose is to give nations a peaceful way to resolve disputes when one country tries to close its straits to navigation. standing alone.International Law – a brief primer Nathaniel Burney Arguments against ceding authority to the U. and other countries rely on for military and trade shipping. which the U. reflecting the importance of careful consideration when entering into binding agreements such as this. Unfortunately. Back to Table of Contents Law of the Sea. More and more countries are signing on to the Convention.com/international_law_primer.S. other terms in the Convention are more divisive. The seafaring nations want freedom of shipping. though it allows for arbitration between nations.burneylawfirm. Borders on the sea are measured from the low-tide mark. the International Seabed Authority only has jurisdiction over seabed mining. The Law of the Sea Tribunal does have wide jurisdiction. It is worth considering that the portion on straits. however. in which case ordinary diplomatic pressures and sometimes military action would be required anyway. (The farther out you go. this would simplify matters with a single agreement. 63 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. The straits issue is not limited to the U. Instead of requiring all countries to collect a multitude of two-party navigation treaties.S. but deals with the scores of straits around the world. when the country closing its straits is not a party to the treaty. Kinds of Territorial Rights. With respect to dispute settlement. apply to all international agreements.
the area must be at least that of a half-circle of that diameter.burneylawfirm. 20. There used to be no rule as to what was the breadth of a territorial sea. You have to know where the baseline is. It used to be just 1 nm. then the territorial sea will be indented there. but when it’s indented and convoluted.htm < Source Document .International Law – a brief primer Nathaniel Burney This low-tide mark is the baseline for measuring everything in the law of the sea. Article 10 defines “bays. Territorial Sea. Countries have the right to claim this much. The state has exclusive jurisdiction. Not enough to know just where the coastline is.” the same as land territory. but they aren’t required to exert their jurisdiction this far out. 64 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. Rivers and Bays. then just draw the baseline straight across the mouth of the river/bay. Article 7 permits straight baselines to be drawn from set points on the coast. 200.com/international_law_primer. Taking the mouth as a diameter. That became meaningless with long-range weapons. If the mouth of the water is broader than 24 nm (12 nm from either side). Territorial seas are 12 nm out from the coastline. then 3 nm.” There must be a certain amount of area behind the mouth of the bay. Article 5. That’s easy when the coastline is convex. There is no right of innocent passage. If the coastal batteries could hit you. etc. Article 3 permits states to claim out to. Then in the 1940s states started claiming all sorts of distances — 15. then you were in the state’s territorial sea. Water on the land-side of the baseline is “Internal Waters. This caused problems for those who were trying to navigate. 100. otherwise it’s just an indentation. but not exceeding. If the distance between the low-water marks is 24 nm or less. 12 nm from the lowtide baseline. Unless it is a “historical” bay.
A variety of laws and regulations can be applied to ships in innocent passage — it is not the same as the high seas. Exception — Israel’s only Red Sea port is at the mouth of the Gulf of Aqaba. You get the 12-mile belt provided other states get the right of innocent passage within it. Passage is innocent so long as it is not prejudicial to the peace. No willful and serious pollution. Coastal states have the rights & duties to regulate innocent passage.htm < Source Document . Innocent Passage. Innocent passage CAN be SUSPENDED at the discretion of the coastal state.32. When the few rogue states out there try to claim more. This is what effected the compromise between the seafaring and coastal nations.com/international_law_primer. Cannot do anything threatening force.burneylawfirm. They set up sea lanes. regulate safety. etc. Article 45 says that innocent passage there cannot be suspended by Egypt and Saudi Arabia. No spying or propaganda. Innocent passage is a problem for warships. No launching or landing aircraft or any military device. there are protests and countermeasures against them. Can’t practice with your weapons. The United States recognizes the 12 nm rule. No research or surveying. and good order of the coastal state.International Law – a brief primer Nathaniel Burney The Law of the Sea Convention got the vast majority of the states to agree on the 12 nm limit. and asserts its territorialsea jurisdiction right up to the limit. 65 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. No fishing. Submarines must navigate on the surface and show their flag. security. Articles 17 . No commerce contrary to the laws of the coastal state. Can’t do anything else not having a direct bearing on passage.
authorities board the ship and make an arrest? Yes. If the crime disturbs the tranquility of the coastal state. A different set of rules applies when the ship is anchored in port. Note that the U.com/international_law_primer. You have to assert it.) contest this.htm < Source Document . British view: 66 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. then the coastal state can assert jurisdiction. wanted jurisdiction. U. Coast Guard board the ship and arrest him? No..” Wildenhus’ Case.S.burneylawfirm. S. A crime must occur during passage.International Law – a brief primer Nathaniel Burney Many states say that passage of a warship is by definition prejudicial to the peace and good order of a coastal state. France. under Nationality jurisdiction and Flag-ship jurisdiction. The murderer could have been subject to Belgian jurisdiction. The consequences of that crime must extend to the coastal state. Abu the Butcher is on board. The big-navy states (U.K.S. U. The ship puts in to port. Murder disturbs the tranquility of the shore state. Can the U. etc. A Belgian national killed another Belgian on board a Belgian ship. and he has clearly violated United States laws. Can the U. It is up to the local police and judicial authorities to decide whether a particular incident “disturbs the peace of the port. But the ships were moored in port here.S.S. A murder occurs while the ship is in port. So many states say it’s okay only if the coastal state gives permission. A Panamanian cruise liner is just passing through the United States territorial sea. Article 27 defines the only circumstances in which the coastal state gets criminal jurisdiction over ships in innocent passage. Russia.S. so the local authorities had jurisdiction. Jurisdiction in Territorial Seas. Ct. 1987 — Belgian ships were moored off New Jersey.
Ct.htm < Source Document .S. flag vessels. yet.S. (You can’t exert your police powers within another sovereign’s jurisdiction. and is caught in the act by a marked official vessel or plane. U. it is exclusively the concern of the flag state. Warships are immune from jurisdiction within the territorial sea. Where the crime occurred. ship that was moored at the Belgian Congo. citizen.International Law – a brief primer Nathaniel Burney The subjugation of the ship to the local criminal jurisdiction is complete. If anything happens on board that ship. You cannot board a warship and exert your jurisdiction. Whether the ship was in port. but once the bad guys get into another state’s territorial sea. You can go through other states’ EEZs. There was a murder on a U. Article 95 gives them complete immunity. 1933. and they try to flee. then the coastal state may pursue them into the high seas and board you. because the murderer was a U. You have to keep constant contact. Pursuit must be continuous. so the murderer was brought back to the United States to stand trial. It doesn’t matter that the crime took place outside of the United States. Hot pursuit. Flores. Any derogation from it is a matter of comity in the discretion of the coastal state.S. When the local sovereign does not assert its jurisdiction. Belgium did not want jurisdiction. (Article 111) If someone engages in a violation in one zone.) 67 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. then the flag state has jurisdiction.com/international_law_primer. United States v. has extended its jurisdiction over all acts on U. even in port.S. So it is important to know: What the flag state is.S. and also because the U. they are scot-free. for hot-pursuit purposes. Radar/satellite tracking does not count as contact.burneylawfirm.S.
even in another state’s territorial sea. Drug courier ships by definition do not have innocent passage. in which case you can board them anywhere. You can always cut a deal. or sanitary laws within its territory/territorial sea. Sanitary laws. (Article 33) Beyond the 12nm territorial sea. Punish infringement of those laws which were committed within its territory/territorial sea. Less than it has in its territorial sea. Civil jurisdiction is almost impossible to assert against a ship in innocent passage. Within the Contiguous Zone. EVERYTHING ELSE which would be a violation of innocent passage IS OKAY in the Contiguous Zone. because they’re trafficking drugs. Of course. a coastal state has some jurisdiction.htm < Source Document .com/international_law_primer. The coastal state may exercise the control necessary to: Prevent infringement of its customs. but still some. Customs. Civil jurisdiction. so you can go after them. 68 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. With just a territorial sea. fiscal. the Contiguous Zone is another band that goes out another 12 nm. Immigration laws. But you cannot pursue them into another state’s territorial sea without permission. and wait for the right moment to send your speedboats in (after all. a coastal state could be harassed by violations of innocent passage. you can’t police every inch of the sea every second of the day). Contiguous Zone. All you’d have to do is line up your ships just beyond 12 nm. you still have to decide whether the ship was in innocent passage or not. Fiscal laws.burneylawfirm. if they violate innocent passage you can chase them all the way into the high seas and still exert jurisdiction. As long as you maintain contact with the bad guys. immigration. The Contiguous Zone prevents this.International Law – a brief primer Nathaniel Burney Unless the bad guys are flying your flag. And of course you can get the state’s permission to board the bad guys even if they’re flying a different flag.
Islands. (Article 78) You can inspect other ships in your EEZ. a coastal state has the right to exploit the resources within the Continental Shelf area. Article 21.burneylawfirm. and you’re likely to get blown out of the water. even when there is no physical geologic shelf present.htm < Source Document . and can make arrests or otherwise enforce your rules. EEZ’s are ruthlessly patrolled by many countries for enforcement purposes. Art. the same as other coastal states. Conservation and management are the coastal state’s responsibility. Enforcement. This is big business. and managing the fish and other resources below the surface. A ship passing through the EEZ is only subject to the economic regulation of the coastal state. it’s pretty much like the high seas. they have the right to be released on bond. but usually 200 is right. There’s also a lot of mineral and oil mining out there. If you do arrest someone. Islands get to assert a 200 nm Exclusive Economic Zone. fishing or mining. You go fishing in someone else’s EEZ. Legally. Fishing is the prime contributor to many countries’ economies.com/international_law_primer. but they don’t get an EEZ. exploiting. 69 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. the Continental Shelf extends out 200 nm. Continental Shelf.International Law – a brief primer Nathaniel Burney Exclusive Economic Zone. As Spain’s fishing fleet learned from Canada not long ago. conserving. (Article 76) Underneath the water. the coastal states has rights for exploring. Rocks which cannot even support life do get a territorial sea. you need a license. If you’re going exploring. Otherwise. Some geologic continental shelves go out beyond 200 nm. (Articles 55 .75) This goes out 200 nm from the Baseline. 56: Within the Exclusive Economic Zone.
Without nationality. it’s drug trafficking.com/international_law_primer. and you can go for it. Article 108 deals with drug-courier ships. The U. Below the High Seas. Anybody can go there. Right of Visit (Article 110) Warships of a different flag CANNOT board you unless your ship is: Engaged in piracy.S. The high seas are open to all states.htm < Source Document . Engaged in the slave trade.” With a capital “A. however.191). mostly dealing with the deep-sea-bed mining authority. of the same nationality as the warship. ships can do just about anything. whether coastal or landlocked.International Law – a brief primer Nathaniel Burney High Seas. Back to Table of Contents 70 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. Warships CAN board you with your flag state’s permission. You can only be boarded under the narrow scope of Article 110. In reality. You still can’t board another state’s ship. And you can even chase them all the way out to the high seas if you’re in hot pursuit. Coast Guard is adept at getting permission. even though you’re flying a different flag. On the high seas. BUT if the drug ship enters your territorial waters that’s not innocent passage. The Area (Articles 133 .” There are a lot of provisions here.burneylawfirm. lies what is called “The Area. Engaged in unauthorized broadcasting and the warship’s flag state has jurisdiction under Article 109. beyond the 200nm Continental Shelf.
Then. if there is an alternate route that is just as convenient. Less restrictive than innocent passage. Straits. Comply with generally-accepted regulations for controlling pollution. Turkey says Russian tankers shouldn’t be allowed to use the Bosporus to get into the Mediterranean. and Archipelagic States. It doesn’t help the Russian position much that their tankers keep running aground. is a strait. under Article 38. for example. because they’re too bad for the environment.International Law – a brief primer Nathaniel Burney Transit Passage. Exception. 71 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. Transit Passage. Corfu Channel — Even if there are alternate routes. Like Gibraltar.htm < Source Document . Ships (and aircraft) must: Proceed without delay through or over the strait. Comply with generally-accepted international regulations for sea/air safety. Subs get to submerge. Refrain from any threat or use of force against the coastal states. When you extend a territorial sea out from 3 nm to 12 nm. Straits. Transit Passage may not be suspended. Generally passage from one High Seas/EEZ to another. Military ships have every right to transit in their normal mode. rather than innocent passage. Definition: It must have been a traditional sea route. used by international navigation. not transit. And then all passage between the Atlantic and the Mediterranean would have to be innocent passage under the jurisdiction of Spain and Morocco. Refrain from any activities other than those incident to their normal modes of continuous and expeditious transit (unless necessary because of distress or force majeure). and there’s a pipeline right across Turkey anyway (which by the way provides Turkey with some fees). there is only innocent passage. a route from the High Seas to the High Seas. So through straits you have Transit Passage.burneylawfirm. is when the strait lies between a state and its island. straits have a tendency to disappear.com/international_law_primer.
Back to Table of Contents 72 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. the rule is that the ratio of water to land must be no greater than 9:1 within the boundary.burneylawfirm. The baselines cannot be extended out around islands far away from the rest of the group.com/international_law_primer.54).International Law – a brief primer Nathaniel Burney Archipelagic States (like Oceania). but they must permit sea lane passage (Articles 46 .htm < Source Document . These can set baseline borders around the clusters of islands. To prevent gerrymandering.
S. Canada. but we’re starting to establish some clearly-stated goals. Not obligations yet. The Law of the Sea Convention also says states must take “all measures necessary” to ensure that activities within their own jurisdiction won’t harm the environment of other states. just goals. Back to Table of Contents 73 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. INTERNATIONAL ENVIRONMENTAL LAW There is no clear customary international law here yet.htm < Source Document . (Chernobyl sped that provision along. but that’s a really broad statement. when the case is of serious consequence and the injury is established by clear and convincing evidence.burneylawfirm.N. The Law of the Sea Convention says signatory nations have the obligation to preserve the sea. U. you’ve got to understand the formation of customary international law cold. Restatement (Third) § 601: State Obligations with Respect to Environment of Other States and the Common Environment. no state has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein. arbitration tribunal 1941) — United States claimed that Canada was polluting the U.) The duty of a source state to inform others of impending arm to them or of significant risk of such harm is an obvious corollary of the general obligation to prevent and minimize transboundary harm. you have to notify everyone about it. And when you learn of damage to the environment. The court held that: Under the principles of international law. v. To understand international environmental law. An example of how to draft something so it won’t be a binding obligation. Transborder Pollution Trail Smelter Case (U. because that’s what it’s all about. This is soon to be a binding provision.S.International Law – a brief primer Nathaniel Burney IX. Really mealy-mouthed.com/international_law_primer. as well as the law of the United States.
which is universally accepted as the codification of the law of everything to do with treaties. And that country you’re dealing with can shaft you big time. INTERNATIONAL AGREEMENTS Vienna Convention on the Law of Treaties. Agreement must be in writing. your country has no obligation to come to your rescue when the other country shafts you.International Law – a brief primer Nathaniel Burney X. A contract between a corporation and a state is not an international agreement. An agreement can exist without a writing. The U. is not a state. Agreement must be in writing. setting the rules for the treatment of companies and contracts. but that just means they aren’t “treaties. Companies/individuals cannot even make international agreements. Covers anything that is it treaty: Parties must be states. Parties must have agreed. The parties must have intended it to be binding. to get an international agreement between your state and the state you’re dealing with.com/international_law_primer. but the Vienna Convention won’t apply to it.” Parties must be states. The Vienna Convention on the Law of Treaties is gospel. much less treaties. Oral agreements are difficult. International agreements can lack some of these requirements. An “international agreement” is defined at the top of the Vienna Convention on the Law of Treaties. The United States hasn’t signed it. Absent that. because we have some problems with appendices to the Convention. It is international law with regard to treaties. but we do obey it. Preferable.htm < Source Document .burneylawfirm. at the international legal level. How do you establish what actually happened? And did the words used establish an intent to be bound? 74 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. The agreement must state that the governing law will be international law. Parties must have agreed. then.N. and there’s nothing you can do about it.
Parties must have intended it to be binding. 1974) — France was making above-ground atmospheric nuclear tests. dealt with an issue within his authority. and he informed his government what was said. Statements are only binding when the state intends them to be binding. The assertion was made while negotiations were going on. . He was merely chatting to the press.burneylawfirm. you make offers which. Burkina Faso case again — The Prime Minister’s statement to a reporter from Mali about conceding a border dispute did not create a binding legal obligation. the statement was binding. you’re just spouting off ideas without intending to be bound by them. The title of the document means nothing. The court never got to the legality of these evil cloud-producing tests. The agreement must state that the governing law will be international law. because the French President made a unilateral statement that they would cease above-ground atmospheric tests. Make sure you know WHY YOU ARE AT THE TABLE! And if you’re just there to discuss. Context is important.C. The assertion was made by the head of state. and even though it was just a unilateral assertion.J. Mali v.C. In context like this. and desires mean nothing. You want the words “the parties shall .htm < Source Document . It was not in the context of negotiations. become binding. Are you engaged in “discussions” or are they actually “negotiations”? In negotiations. France. It was not announced to the world in the forum of a legal dispute. . The assertion was made to the international community. however.J. even though there was no consideration. And everybody was clamoring for this result at the time. and it went to the I. don’t slip into negotiation! Back to Table of Contents 75 MicroBook Special Reprint Reprinted with Permission Source Document > http://www.International Law – a brief primer Nathaniel Burney Recall the discussion between the Danish and Norwegian ministers that became a binding agreement. I. In discussions. Mere hopes. when the Norwegian minister’s statement was affirmative.” or “the parties agree” Nuclear Test Case (Australia & New Zealand v. plans.com/international_law_primer. if accepted. Australia and New Zealand protested furiously.
and how it may be extended. Such as a State Department memo. Nonbinding documents may still be the building blocks of binding obligations. Do it yourself. This doesn’t make it binding. Or a document where the two countries say wouldn’t it be great if we . The agreement should definitely say when it goes into force. Don’t minimize the importance of these documents. it just means “this is the text we were talking about. if you neglect to include such language. . Often what will happen is a document is drafted. Be careful. redrafted. when you said you did intend it in a nonbinding document. Or a letter to another government. Sub-entities of a state only have treaty-making power if the constitution of the state says so.International Law – a brief primer Nathaniel Burney Nonbinding international documents may still have legal effect. Articles 9 & 10 of the Vienna Convention on the Law of Treaties — adoption of a text is not an expression of intent to be bound.” That’s smart. but there is no need if you’re negotiating with a head of state or the foreign minister. Some nonbinding documents have become binding international law. or sign it ad referendum.htm < Source Document . and a requirement for statehood. Back to Table of Contents Capacity to Enter Into Treaties. Doctrine of Full Powers. But.com/international_law_primer. It helps to know which text you’re talking about. So what you do is “adopt the text. So nonbinding documents are still out there to be used against you. Back to Table of Contents Making a Treaty. translated.burneylawfirm. because it makes it easier to go forward during the negotiations. amended and terminated. You are estopped from claiming that you never intended X. You can request a document to that effect. the Convention fills in the blanks. The capacity for treaty-making is both an attribute of statehood. and others have achieved great legal significance. and redrafted again. because the default provisions may be contrary to the needs of your country. . how long it remains in force. 76 MicroBook Special Reprint Reprinted with Permission Source Document > http://www.” You initial the document. the presumption is that the guy at the table has the authority to speak for his state. In most negotiations.
77 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. Accession is the acceptance by one nation of a treaty already concluded between other states. (The Law of the Sea Convention is an example. You can’t make them.S. Reservations. or All the parties have subsequently agreed that such consent may be expressed by that state by means of accession. Some reservations are permissible. Senate loves to make reservations to treaties. Reservations have the effect of turning one agreement into many different agreements. unless you REPUDIATE the agreement. The U. (We agree so long as this clause doesn’t mean we have to . Some treaties expressly forbid reservations.International Law – a brief primer Nathaniel Burney Accession (Article 15). A reservation is a unilateral statement by a state.) The consent of a state to be bound by a treaty is expressed by accession when: The treaty provides that such consent may be expressed by that state by means of accession. It is otherwise established that the negotiating states were agreed that such consent may be expressed by that state by means of accession.com/international_law_primer. excluding or varying the legal effect of certain provisions of the treaty as they are applied to that state.htm < Source Document . And also because we still want the death penalty. for example. you cannot do things that are contrary to the object of the agreement. but would be objectionable to the other signatory states. (The consent of the original parties is required. becoming a party to it. .) We have made reservations. They must be in writing. While awaiting signature. Unless the agreement forbids reservations. . because our Bill of Rights permits free speech (treaties forbid hate speech). in human rights treaties. They must be communicated to the other parties. The third nation can formally enter into the treaty.burneylawfirm.) Reservations are then impermissible. while you’re waiting for signature you comply with the agreement as if it was signed. Unless you repudiate the agreement. Reservations are always impermissible if they go to the very heart of the agreement. they are permissible.
and that A is not a party as far as D is concerned.International Law – a brief primer Nathaniel Burney They are only binding on the other parties if the other parties accept the reservation. say Article III. Use the ordinary meaning of words. Suppose there is a treaty signed by countries A. you still have to comply with agreements or be held liable for the result of your noncompliance. If you want the agreement to be interpreted a certain way. in light of the context and purpose of the agreement. C. Failure to object to potential breaches makes them okay. the trend has been to forbid reservations in multilateral agreements. There is no agreement between A & C as to Article III. Be consistent.com/international_law_primer. Best to negotiate out any problems between the parties. It ought to have a dispute-settlement clause as well. or make your objections known. Because of the hodgepodge this creates.) Back to Table of Contents Observance of Agreements. there is an agreement. an arbitrator is preferable. B is okay with it. There is no agreement at all between A & D. A makes a reservation on one part of it. Take context not only from the surrounding text. Between B. (Sometimes. 78 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. B. Article 31. but also from actions and failures to act after the agreement was made. There’s only a partial agreement. however. and D. D says the reservation is intolerable.burneylawfirm. rather than going to a third-party arbitrator. International law is not an excuse for the non-observance of an agreement. Even if by doing so you would violate your own laws or international law. C opposes the reservation. there is a treaty between A & B. C. Fine. and D. Back to Table of Contents Interpretation of Agreements. Acceptance will happen by default if they don’t reply within 12 months. including the reservation.htm < Source Document . either get in there are enforce it.
Both parties must make an interpretation. The exception is when the restriction was notified to the other negotiating states prior to his expressing his consent. Specific Restrictions on Authority to Express the Consent of a State. Back to Table of Contents Invalidity of Treaties. None of these automatically invalidate it. you’ll have a nightmare to deal with when it gets amended orally. but only when the Article 31 rule doesn’t give you any useful interpretation.53 list things that can invalidate a treaty. (This has never happened.htm < Source Document . Nor is it up to the courts of either party to interpret treaties. Jesse Law’s Case (United States v.International Law – a brief primer Nathaniel Burney Preparatory documents and discussions can be used to help interpret an agreement. Special Arbitration 1921) — Neither party individually interprets treaties. A violation would be manifest if it would be objectively evident to any state conducting itself in the matter in accordance with normal practice and in good faith.) “Ultra vires” means an act beyond your authority. you have to go through the same steps. Ultra Vires treaties — You can’t excuse nonperformance just because entering the treaty was in violation of your internal laws (your internal laws did not give you authority to enter into the treaty). Always write in your agreements that amendment and modifications must be in writing. his failure to observe that restriction may not be invoked as invalidating the consent expressed by him . Great Britain. and if the presumption formed an essential basis of the state’s consent to the treaty. Stick to the agreement itself first (text and context). for it to be authentic and binding. they simply give the other side cause to invalidate it.com/international_law_primer. Error invalidates a treaty if the error relates to a fact or situation which was presumed to exist as of the time the treaty was concluded. Also. Articles 46 . make the original parties do it. Only if it remains ambiguous do you go to other sources. If the negotiator’s authority to sign it has been limited by a specific restriction. Otherwise. Error. 79 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. Back to Table of Contents Amendments and Modifications. unless the violation was manifest to any other state.burneylawfirm. With plurilingual texts.
and wanted a peace treaty. If your consent was procured by the threat or use of force in violation of the principles of international law embodied in the U. Conflicts with a Preemptory Norm of International Law. by another negotiating state. then the treaty is void. Joshua made a peace treaty. and anybody on the territory was fair game so far as they were concerned.International Law – a brief primer Nathaniel Burney Error is not an excuse if you contributed to the error. It depends on the object/purpose of the agreement. carried moldy food. He had God as a lawyer. but he didn’t consult him. The Israelis amazingly admitted to being duped in Joshua 9. Bible is full of international agreements. then you may invoke the fraud to invalidate the treaty. They met up with Joshua and claimed they were from far away.htm < Source Document . Charter. and frauds. Corruption. Instead you go to Article 79 (Correcting errors). then you can invoke that corruption to invalidate the treaty. The Israeli army was conquering and liquidating the whole region. and three days later came upon the Gibeonites. The breach has to be material. Breach. then the treaty is invalid. 80 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. or you should have known of it. A treaty is void if it conflicts with a pre-empting norm of general international law. You can’t just automatically renounce an agreement because the other side breached.com/international_law_primer. not bad. If your consent was procured by the coercion of your representative through acts or threats directed against you. Joshua needed a good lawyer. directly or indirectly. Coercion — Automatically Void. And you may only be able to revoke part of the treaty. If your consent was procured through the corruption of your representative. If you were induced to conclude a treaty by the fraudulent conduct of another negotiating state. and he couldn’t conquer them because of his treaty. Joshua was not making any treaties with neighbors.burneylawfirm. and didn’t want to be crushed. Fraud. An error relating only to the wording of the text doesn’t invalidate the treaty. So they got together a negotiating team and made them look like they’d made a long journey — dressed in old ragged clothes. The Gibeonites lived on the other side of the hill. Breach only gives you grounds to revoke.N.
Radical Change of Circumstances. 1972) — An example of states trying to wriggle out of a disputeresolution clause. it must be void. In return. India suspended all flights that would have flown over Pakistan or landed there. That’s total chutzpah. and landed in Pakistan.International Law – a brief primer Nathaniel Burney India v. or at least supported it. and has to radically change the performance of the agreement. India was wrong. however. India said there was no need to go to the ICJ. But there was a treaty saying they couldn’t do that. because Pakistan had also violated the agreement. Termination of a treaty is okay if the circumstances have fundamentally changed.C. you can’t do that. Because the two parties mutually breached the agreement.htm < Source Document . A plane was hijacked in India. so they didn’t need to abide by its disputeresolution clause. unforeseen. Back to Table of Contents 81 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. So they were bound by the dispute-resolution clause. Article 62 spells out the narrow circumstances where this is okay: The change has to be material.burneylawfirm.J. Pakistan (I. The treaty said that the ICJ would make binding settlement of disputes. India claimed that Pakistan was behind it.com/international_law_primer.
International Law – a brief primer Nathaniel Burney
XI. HUMAN RIGHTS
Basics. There are several sources of human rights. Bilateral agreements establishing substantive human rights. Bilateral agreements establishing procedural human rights (how to enforce the substantive rights). Multilateral conventions establishing substantive human rights. Multilateral conventions establishing procedural human rights. Some provisions of these conventions and treaties (especially those which are fundamental norms) are also customary international law. So even if a state isn’t a signatory to a certain treaty it may still be obliged to abide by its provisions. First look to see if there is a bilateral agreement. There may be diplomatic protection of nationals, there may be human rights protections. If that isn’t adequate, look to see if the states signed on to a multilateral convention that deals with the rights at stake. What you think people are entitled to is not necessarily the same as what international law says people are entitled to. When the government is involved in violence, torture, etc., rather than mere individual evils, it is a higher level of evil. It corrupts the whole state, by creating a bureaucracy to administer it and to inflict it. Corrupts even innocent people. The exact same evils committed by the Nazi state are still being done worldwide. Human rights are not bestowed by individual states on their people. States cannot dictate what human rights their people have and don’t have. The Universal Declaration of Human Rights states that every human being is born with rights. Nobody gives them to you. Also the International Covenant of Civil and Criminal Rights. The rights derive from the dignity of the human person. Law is what makes the difference between the despot’s whims and justice. “Universal,” by the way, means “universal.” Once, there was a time when countries could say “don’t impose your western ideals on us.” But that was before practically everybody got together and agreed to these human rights.
82 MicroBook Special Reprint
Reprinted with Permission Source Document > http://www.burneylawfirm.com/international_law_primer.htm < Source Document
International Law – a brief primer Nathaniel Burney
Now if a country says “don’t impose your western morals on us,” you point to the Universal Declaration of Human Rights and respond “you signed this beforehand. You helped write it. These aren’t ‘western’ ideals, these are universal. So obey them.” These rights have been articulated in convention after convention after convention, by almost every country. Many states have been cajoled or compelled into agreeing to these conventions, and there still remain a small handful of renegade states. Not every bad thing is a violation of international law. You need to know whether a particular evil is covered by customary international law, or by a bilateral/multilateral agreement. You also need to know what the law provides. Back to Table of Contents Some U.S. Mechanisms Related to Human Rights. 22 U.S.C. § 1732 — Release of U.S. Citizens Imprisoned in Foreign Countries. When U.S. citizen is imprisoned abroad, the President (State Department) must demand the reasons for that imprisonment. If the reasons are unjust, he must request the release of the citizen. If that demand is not met, then he should try to get him out, preferably by means other than an act of war. The President is only required, however, to inquire. Often a single source of information is not enough. America is not required to come to your aid. We do it a lot anyway, but many other countries couldn’t care less about the fate of their citizens abroad. Some governments are notorious for not caring about the treatment of their citizens abroad. But the United States will at the very least inquire as to the reasons for your imprisonment. To sue for a remedy in a U.S. court for human rights violations, the best basis is the Alien Tort Statute. Oldie but goodie, but only applies to non-nationals, remember. Aliens hurting aliens. You sue the torturer as an individual. If you don’t know who the torturer was, you’re out of luck.
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International Law – a brief primer Nathaniel Burney
You cannot sue a foreign state in U.S. courts for human rights violations. The Foreign Sovereign Immunities Act prevents that. There is no exception for torture, only for commercial activities. Torture Victim Protection Act. Anybody can sue under this one. Citizens too. The torturer is liable for civil damages. Don’t forget about international agreements, which set further protections and rights. The United States is party to a lot of bilateral agreements that do this. Treaties of Friendship, of Navigation, and of Commerce are usually what establish certain guaranteed rights and the enforcement procedures. When you draft such a treaty, do make sure you include both substantive and procedural rights. Corporations really need such treaties, to protect their rights. Especially property rights. Their property rights are often at risk in foreign countries. Responsibility for Injury to Aliens. Property rights have never really been codified in any human rights conventions. (Because the world cannot agree on what are and are not property rights.) So a corporation should get the United States to make an agreement with the foreign country, ensuring the protection of your property rights. Make sure this is a bilateral agreement between the two governments. Merely putting such a clause in a contract between your company and the foreign state is not enough to protect you. It’s not an international agreement, recall, unless both parties are states. Otherwise, you wind up suffering through the cold reality of litigating disputes in a foreign court, and all the U.S. can do on your behalf is whine a bit. Case Concerning Elettronica Sicula S.p.A. (ELSI) (United States v. Italy) (I.C.J. 1989). Raytheon’s assets were seized by Italy. Raytheon now couldn’t pay off its creditors, and it requested United States diplomatic protection. It just so happened that there was a treaty between the United States and Italy protecting the property rights of corporations doing business in these countries. Procedural Point — Before you even go into the tribunal, you must show that you have exhausted all local remedies. Otherwise, your case is going to get thrown out of court. Not ripe enough.
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International Law – a brief primer Nathaniel Burney
A good lawyer will make sure that you did exhaust your remedies. Good lawyers know the procedural requirements. There are a couple of exceptions to this rule. The burden is on the defendant state, however, to show that there were remedies that you failed to employ. You also must have made a good-faith effort to comply with the law. Raytheon’s lawyers did attempt to litigate the matter in the local Italian courts. Of course, the local jurists ruled against them, so they then went on to the international level. They asked the United States to sue Italy on their behalf, for violating the agreement. Italy claimed that local remedies had not been exhausted; Raytheon could have appealed, in some arcane fashion. Raytheon responded that this was ludicrous. How many courts did they have to look for? The I.C.J. ruled that, once Raytheon made the attempt to use local remedies, the burden was on Italy to show that there was another remedy available. And Italy did not do that to the satisfaction of the court (it really was pretty arcane). Claim of Finnish Shipowners (Finland v. Great Britain) (Arbitration 1934). Ships, owned by Finnish nationals, were used by Great Britain during war. Some of the ships were lost, and Great Britain never compensated the Finnish owners. Finland, the state, sued in British courts and lost. Then Finland took the claims to an independent sole arbitrator, claiming that the local remedies had been exhausted. Britain argued that arbitration was precluded, because Finland could have appealed. Finland replied that an appeal would not be a true recourse, because the issue would no longer be an issue of fact but of law. So an appeal would not be an effective remedy in itself. The arbitrator held that there is no obligation to exhaust local remedies if, as here, they would be ineffective or illusory. This is still the rule. And it’s important, since the U.S. has the same legal system. If your “opportunity to be heard” means you’ll be dead if you show up, then the local remedy would be illusory, so you aren’t required to use it before going to the international courts. If the machinery simply doesn’t exist to handle your case, then local remedies would be ineffective, so go international. You are exempt from the requirement to exhaust local remedies. If it would be pointless to use local remedies, then go international.
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conduct reasonably necessary in an emergency. even conduct that would not ordinarily be illegal will still be a violation if it involves unreasonable discrimination. Mexico) (General Claims Commission 1928). Government conduct frequently can hurt you without being considered a human-rights violation.International Law – a brief primer Nathaniel Burney If the local courts say they don’t have jurisdiction. Back to Table of Contents Was The State Involved? For there to be a human-rights violation. as it is the corporation’s state. and directed the armed officers to use “suitable” means to bring him in. rather than the corporation. However. You need to be a national of the country asserting diplomatic protection. Getting mugged in an alley doesn’t count. Latin American countries have a deep-seated feeling that foreigners only have as many rights as locals. bureaucratic nitwittery. Standing for Diplomatic Protection. Any state official counts. currency devaluations. (Genuine intent. etc. when the corporation didn’t make good-faith efforts to obey local law. 86 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. not an individual. the harm must have been inflicted by the state. Taxes. Like much of the world.) In pleadings for a human-rights case. Use the Nottebohm standard to determine whether one is a national or not. This is odd. Way Claim (United States v. His acts may be attributable to the state. The Calvo Doctrine (Latin American view on responsibility for injury to aliens). you must attribute the violation to the state. then the international tribunal is likely to rule against the corporation. for the arrest of an American (warrant was facially void under Mexican law for failure to state a charge). So corporations are made to sign contracts where the corporation waives diplomatic protection. The American was shot and killed during the arrest. A local Mexican sheriff issued a bad warrant.burneylawfirm. So usually such provisions will not be given much weight by international tribunals. William T. etc. that has the right to assert diplomatic protection.com/international_law_primer. However. The United States sued Mexico on behalf of the American’s family. The bad warrant was based on a personal grievance he had against the American.htm < Source Document . then go international.
A personal right that a state is obliged to respect for foreigners. There was direct governmental responsibility for the injury to the American. Hearings in open court must be more than a mere formality. however. B. Gross mistreatment in connection with arrest & imprisonment is not tolerated under international law. (He escaped after 11 months. No undue delay. So this case held that certain proceedings had to be required: Regularity of court proceedings.) International standards weren’t violated by any of this.S.com/international_law_primer. Back to Table of Contents Substantive Bases of Responsibility. Restatement (Third) § 711: State Responsibility for Injury to Nationals of Other States — A state is responsible for injury to a national of another state caused by an official act or omission that violates: A human right that a state is obliged to respect for all persons subject to its authority. The United States always immediately accepts responsibility for the actions/inaction of local officials.burneylawfirm. Such standards didn’t exist yet.000 on his behalf. A right to property or another economic interest that a state must respect for any persons. no oaths were taken. Mexico) (Claims Commission 1927) — An American was subjected to a Mexican kangaroo court. no opportunity to interview the witnesses against him. there was no habeas corpus. in order to maintain this precedent.000. Chattin Claim (United States v. He was seized without being notified of the charges.htm < Source Document . He was given a 5-minute hearing (the court merely read the paperwork). Even a lowly official is still an official. and was sentenced to two years in a Mexican prison. so he was awarded $5. no opportunity to confront his accuser. but because he was able to escape the damages were reduced.International Law – a brief primer Nathaniel Burney Even this personal vendetta by the sheriff was considered conduct attributable to the state. Informing the accused of all charges against him.E. neither his family nor anybody else was told of this. Proper investigations. (The U. Confrontation.) 87 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. had claimed $50.
Need to be specific about this. Universal Declaration on Human Rights. health. and economic/social/cultural rights on the other hand. and conditions of economic and social progress and development. without distinction as to race. All we’re concerned with here. They are not obligations. to which almost every state is a signatory. are the civil/political rights.N. Universal respect for. This isn’t really a binding obligation. language. and a couple others are conspicuously absent. passed it in 1948.International Law – a brief primer Nathaniel Burney Before WWII. There is a division between civil/political rights on the one hand. human rights and fundamental freedoms for all. but that’s just a goal. the economic/social/cultural rights are still only goals. enumerated in the Nuremburg Charter. then.N. and observance of. At first this was just a bunch of goals. and related problems. Charter Article 55 — The U. Solutions of international economic. it’s really vague. or religion. not rights. Civil & Political Rights. sex. and cannot be tolerated. Codified in the Covenant on Civil and Political Rights. The definition of these crimes against humanity. The real full-blown recognition came with the Nuremburg Charter. They only became legal rights over time. It was the result of the nations of the world agreeing that certain acts are crimes against humanity. China. U. Only after Hitler’s Germany did the nations realize that there was a need for universal rights in addition to diplomatic protection. 88 MicroBook Special Reprint Reprinted with Permission Source Document > http://www.N. The Nuremburg Charter was not the victors beating up on the losers. nobody could sue their own country for violations of human rights. not an obligation. social. are what led to the creation of the U. Merely a non-binding declaration when the U. shall promote: Higher standards of living.burneylawfirm. over time this has acquired the status of law. Singapore.htm < Source Document . Furthermore. International cultural and educational cooperation. full employment. Great.com/international_law_primer. Even today.N. Back to Table of Contents SUBSTANTIVE HUMAN RIGHTS.
The civil/political rights no longer apply only to signatories of the U. Right to effective remedy by competent tribunals for acts violating the fundamental rights granted by constitution or by law.H.H. No torture. language. place of origin. property.R. detention. hasn’t gone along with this.S. liberty & security of person. or exile. in the determination of his rights and obligations and of any criminal charge against him. 17). Rights apply to all human beings. sex. No cruel. Right to life.International Law – a brief primer Nathaniel Burney Two of the U. without regard to race. Right of accused to be presumed innocent until proved guilt according to law. (The U. home. and to return to one’s own country. Right to asylum in other countries. Cannot find you guilty for something that wasn’t a crime when you did it. religion.htm < Source Document . from persecution (Art. inhuman. No arbitrary interference with privacy. Right to equal protection of the law.R. family. or correspondence.) Right to freedom of movement and residence anywhere in the state. No slavery or servitude. because of 1st Amendment. in a public trial at which he has had all the guarantees necessary for his defense. No attacks upon honor and reputation.D.D. or degrading treatment or punishment.com/international_law_primer. No arbitrary arrest. including one’s own. Right to recognition everywhere as a person before the law. rights did not get codified: Property rights (Art. and Right to state protection against such attacks. 14). 89 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. Rights to leave any country. They are not customary norms of international law.burneylawfirm. etc. Can’t impose greater penalties than were applicable at the time you committed the offense. including equal protection against discrimination. Right to a fair and public hearing by an independent and impartial tribunal.
4). and to seek. worship. No marriage without free and full consent of the spouses. receive.. Every corner of the globe was represented and had a say in the formulation of these rights.R. There are no exemptions. These are fundamental norms of international law. and impart information and ideas through any media and regardless of frontiers.International Law – a brief primer Nathaniel Burney Right to a nationality. This includes freedom to change religions. to manifest one’s religion in teaching. And even in a state of emergency certain rights are still inviolable (Art. Right to marry and start a family without limitation due to race.H. This is truly a universal declaration. Right to equal access to public service in one’s country.D. Right to peaceful assembly and association. and observance. Everybody voted on the U. or religion. and religion. except Saudi Arabia. Even dissenting states are bound by these norms.burneylawfirm. 90 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. No arbitrary deprivation of nationality. States who argue that this is “eurocentric hooey" are wrong. expressed in periodic and genuine elections with universal suffrage and secret ballot or other free voting method. in public or private. 7). Right to free thought.com/international_law_primer. Right to expression of the people’s will as the basis of authority of government. designed for application in the real world. and freedom either alone or with others. This is not just a rule of customary international law.htm < Source Document . If a country declares a state of emergency. Right to freedom of opinion and expression. then it must tell other countries (Art. And none of the 8 states that abstained are around any more. nor denial of the right to change nationality. nationality. Right to take part in the government of his country. Right to state protection of the family as the fundamental group unit of society. except for 8 states. Can’t compel someone to belong to an association. International Convention on Civil and Political Rights — Realistic. directly or through freely-chosen representatives. practice. conscience. This includes freedom to hold opinions without interference.
nor was it cruel or unusual treatment. he was sentenced to 3 strokes of a birch branch on his ass. and the police were using severe interrogation techniques. Cases are still developing the standard. He was sore. Ireland v. or kill. Was it degrading? The state was involved. white noise. but strangers cannot. Soering fled to the U. it was govt-imposed assault by one person on another. Soering v. H. who with his girlfriend killed her parents. Ct. alwayshooded.K. So yes. This wasn’t torture. including sleep deprivation. inhuman. it was degrading. disfigure.K. 65-67 (1978)— England was going all-out to get information from the IRA. “Cruel. was party to the European Convention of Fundamental Rights and Procedure.R. there was a sixmonth delay between the sentence and its imposition. 14-17 (1978)— A 15-year-old British citizen living on the Isle of Man assaulted a schoolmate. Under Manx law. Both the U. are open to local variation. You cannot extradite to a country that subjects people to torture or to cruel.” however. 25 Eur.) The state was involved in the beating. student. The problem wasn’t the fact that he was subject to the death penalty. which said no torture. and the U. He could have gone to death row in Virginia. H. and degrading.Va. It was 1978. had 91 MicroBook Special Reprint Reprinted with Permission Source Document > http://www.K. 26 Eur. refused. and which often results in genital mutilation.K. asked for extradition. it was public in nature. (This wasn’t caning. H. 11 (1987) — This is the case of Jens Soering. Tyrer. Wasn't even brought up during the debate over the caning of that kid in Singapore back in the early 1990s.com/international_law_primer. 161 Eur. or degrading treatment.burneylawfirm. cruel/ inhuman. so the U.International Law – a brief primer Nathaniel Burney Torture is a violation of fundamental norms. The civilized countries of the world had already long since gotten together and said this was a human rights violation. always-standing. United States. and the U. a German citizen and U. which can cripple. This wasn’t torture — torture is aggravated and deliberate — but it was certainly degrading treatment. This is not new.. it was done via official procedures. Ct.R. The U. food deprivation.R. Especially not in the name of the state. etc.S. United Kingdom.htm < Source Document . but not cut.S. inhuman or degrading treatment. Ct. Parents can do it.
8 years to await punishment. The problem was Virginia’s Mecklenburg death-row facility (a favorite target of the ACLU). More and more conventions are out there. 14 are the fundamental rights enumerated in the next section. Back to Table of Contents 92 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. According to Restatement (Third) § 702. Torture is always too far. Cruel. Art.burneylawfirm. Murdering or “disappearing” individuals. 6 leaves open the possibility of a death penalty. can’t be held in slavery.htm < Source Document . is breaks down. The Commission held that the wait on death row was unacceptable. The biggies of Art.K. Dignity of life is also important. Back to Table of Contents FUNDAMENTAL HUMAN-RIGHTS VIOLATIONS.S. Systematic racial discrimination. Article 8. was not required to extradite him to the U. that’s all. but the psychological effects and contact with other death-row types would be too degrading for this kid. Slavery & slave trade. can’t go to jail for debt/contractual breach. precisely defining these terms and specifying how to enforce them. Some are more tolerant of pain and degradation than others. Consistent patterns of gross violations of internationally-recognized human rights. Confinement itself is bad enough. Without these.com/international_law_primer. Article 11. Torture. inhuman or degrading treatment or punishment. so the U. though. these are: Genocide. The price people are willing to pay for law & order varies from state to state.International Law – a brief primer Nathaniel Burney the death penalty. You just can’t arbitrarily be deprived of life. Prolonged arbitrary detention. The deterrent effect of a certain treatment cannot be the only determining factor. where it takes 6 .
In fact.burneylawfirm. The highest court of a country is no longer your last resort. you can even bypass the local courts and go straight to the Committee for redress of human-rights grievances. they’ll quit the violations just to stop the pickets and protests. Back to Table of Contents What do you do if an American is tortured by a foreign government? Is there a treaty on point between the United States and the other country? If yes. no matter how tough they act. not only on behalf of your own nationals. if there was no treaty.htm < Source Document . More on that under Use of Force below. You can complain. All parties can assert claims on behalf of victims. then look to see what substantive rights are defined.P. the U. which were later codified in the I.”) All parties to the covenant can complain to the Committee about the practices of a party country. but even on behalf of citizens of the other country. 93 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. you now can intervene with a U.C. If they’re bothered enough. This is a big deal.H. which has been implemented by local conventions. True.D. regardless of their nationality. After WWII. If such rights were violated. And a foreigner being tortured by his own country had no recourse at all. spelled out human rights. No state wants to look bad on human rights.” not “commission. then the country is required only to submit progress reports on compliance every 5 years. If no treaty between us and them. then look for procedural mechanisms in the treaty to enforce them.com/international_law_primer. These provide substantive and procedural rights. For a long time..N.International Law – a brief primer Nathaniel Burney Human Rights Procedure: Is the country a party to the International Covenant on Civil and Politic Rights? Are they a party to the covenant. Article 40 — All states must make reports on their compliance.C.R.R. then individuals within its jurisdiction can petition the Committee. (“Committee. then you couldn’t do anything. force for humanitarian reasons. to the International Human Rights Committee. or are they merely signatories? If merely a signatory. If the state signed Optional Protocol # 1.
then the individual himself could sue the sovereign for human rights violations. where the violating country is made to suffer by all other countries by a vote of disapproval. If a state has signed Optional Protocol # 1.N. there is a Commission (not a committee) that reports on human-rights violations. Iran has never signed Article 41.N.N. China is a signatory. that’s not much help if it doesn’t say how those rights are to be enforced. Article 41 — Experts sit on a committee. citizen being tortured in Iran. Publicity is the bane of human-rights-violating countries. 94 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. but every year it pours a staggering amount of resources into avoiding on-site investigations. The rights themselves are evolving. You need to look at each human-rights convention you’re concerned about to see what procedural mechanisms it establishes. to investigate individual human rights violations. Any country can take up the case of an Iranian being tortured by the Iranian government. [ECOSOC].htm < Source Document . then the U. On more than one occasion. In the Economic and Social Council of the U.com/international_law_primer. codified and signed by all sorts of countries of all cultures and religions.N. U. If it merely defines rights. for example.burneylawfirm. the violating country cannot argue that its treatment of people is a cultural or religious thing. you can have a Resolution 1235 hearing. under Resolution 1503. so all that can happen is that the other member states vote their disapproval. If the violating country has signed Article 41. This is not just “western” idealism. So you have a 2-pronged search.S. as well as to the Iranian citizen being tortured there. governments have been known to fall and be replaced. Following on-site investigations. and should therefore be respected and left alone. Look for substantive definitions. and bring the case before the committee. Or. can make on-site investigations. These are universal norms. and then look for the procedures which make them real. Tyrants do fear them. procedures may be available to both the U. as are the enforcement procedures that make them real. But that is only if Iran had already made the Article 41 declaration. ECOSOC and the Human Rights Commission have provisions for individuals to request the U.International Law – a brief primer Nathaniel Burney Publicity is the first step towards correction. if there are widespread & systematic violations. Again.
Back to Table of Contents Duplication of Claims.P. can never be suspended. You can’t simultaneously appeal to the European Court of Human Rights.R.C. You’d better choose wisely. you can’t just wash your hands of the rights. and to the Commission. You can only bring your claim before a single tribunal. This includes due process & fair trial rights. we may start to see charges against us brought before the Commission.. and the other fundamental jus cogens rights. Freedom from torture. of Hum. The sorts of permissible restrictions on such rights. Lawless Case (Eur. Back to Table of Contents Suspension of Human Rights. Ct. however.C. It already happened to Canada in the Lovelace case. 1961) — Talks about how certain rights can be suspended. R. When you suspend human rights.com/international_law_primer. The concepts of “due process” and “fair trial” are still evolving. because the rights and procedures are different in each tribunal. then all of the courts will throw your case out. Back to Table of Contents 95 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. And some rights can never be suspended or derogated.htm < Source Document .burneylawfirm.International Law – a brief primer Nathaniel Burney Now that the United States is a party to the I. are limited. If there is duplication. or to someone else.
It’s not a dispute unless the resolution would have a practical effect on the relations of the parties. The League of Nations was set up to prevent future wars. may face. A dispute is not just a difference in views. Charter: All members shall settle their international disputes by peaceful means in such a manner that international peace and security. paragraph 3 of the U. didn’t participate the League of Nations failed (also because. but rather to resolve your differences in a peaceful manner. or other peaceful means of their own choice. judicial settlement.N. inquiry. If you call it that. but because the U. arbitration. under customary international law. There is an obligation.N. So the first thing to do is everything short of force. It used to be that the use of force was one of many acceptable means to resolve a dispute with a neighboring country. are not endangered. The big rule is in Article 2. SETTLING DISPUTES PEACEFULLY The first rule on the Use of Force is not to use it. These are the same problems which the U. when drafting a document about a disagreement. despite its lofty goals. Charter says: The parties to any dispute. nor does a sense of injury mean that there is a dispute.burneylawfirm. and the world paid a horrible price for it when Italy. shall first of all seek a solution by negotiation.htm < Source Document . and Japan started getting away with their aggression.N. resort to regional agencies/arrangements. as opposed to disagreements. We’re dealing with disputes. war was seen as undesirable. the continuance of which is likely to endanger the maintenance of international peace and security.S. and justice.International Law – a brief primer Nathaniel Burney XII. It’s a good idea. the League started selectively treating different aggressors differently). Back to Table of Contents Settling Disputes Peacefully. Also. 96 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. to refer to it as a “disagreement” rather than a dispute. then that might be what you wind up having. Article 33. You can only do it for self-defense or as part of a collective enforcement action. “Dispute” is a technical term that should only be used in the proper sense. Germany. slaughter beyond understanding. paragraph 1 of the U. conciliation. first ask why no other recourse was available.N. When the use of force is an issue. to settle disputes by peaceful means. all members shall refrain from the use of force against the territorial integrity of another state contrary to the purpose of the U. It can’t be moot. But after the horrific slaughter of WWI wiped out an entire generation of European men. A dispute requires a disagreement on a point of law — a conflict of legal views — or on a point of fact.com/international_law_primer. But the League never used the mechanisms that did exist.
mediation. First. and the arbitrator decides which one is best. conciliation. The process of establishing the factual basis on which the dispute-resolution process will rely in figuring out what to do. Good offices and Mediation usually merge together. A settlement is proposed only. try arbitration. You can’t go to some court every single time a disagreement pops up. Third. Negotiation is the State Department’s preferred means of dispute resolution written into international agreements. try good offices.com/international_law_primer. and inquiry. It isn’t binding. Not the result of arbitration. Second. These are the most expensive and time-consuming methods available. Basically means coming up with an official version of the facts. The parties propose their solutions. Inquiry. even if it would be best. so you can get to work fixing the problem. The manner in which you participate in the negotiation can be used against you. That’s what you do in mediation. Going to court should be the last resort. Agreements can specify the procedures for the parties to resolve disputes. A respected third party helps the two sides reach a mutually-agreeable resolution of the problem.International Law – a brief primer Nathaniel Burney Adjudication and arbitration are at the far end of the spectrum. try negotiation. so do it in good faith. 97 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. Conciliation. The arbitrator doesn’t come up with a third solution. Just a recommendation. Note that an obligation to negotiate means you have an obligation to negotiate in good faith.htm < Source Document . this is usually binding on the parties. You actually have to make the attempt. Unlike conciliation.burneylawfirm.
Arrangements for the free flow of information. Given the economic and social roots of many potential conflicts.N.com/international_law_primer. Prevention requires timely and accurate information. The sides argue what the official version of the facts should be. or through staff or agencies or programs. the case must be ripe. All the procedural requirements must be satisfied. Back to Table of Contents Dispute Settlement through the United Nations and Other International Organizations. no duplication. The U. and the court decides that. and the court decides that. Examples of Measures to Build Confidence.International Law – a brief primer Nathaniel Burney Last.htm < Source Document . This requires measures to create confidence.N. or by the Security Counsel or the General Assembly. fact-finding mission on its territory should be considered without undue delay. or by regional organizations (like NATO) in cooperation with the U. A request by a state for a U. can’t be moot.N. The sides argue what the law should be. 98 MicroBook Special Reprint Reprinted with Permission Source Document > http://www.burneylawfirm. The court applies the law to the facts and decides what the outcome should be. Ease tensions before they result in conflict. if conflict breaks out. This can be done by the Secretary-General personally. It needs early warning. Or. etc.N. needs info on economic and social trends in addition to political developments that may lead to dangerous tensions. settles disputes using the following methods: Preventive Diplomacy. Systematic exchange of military missions. based on good intelligence and fact-finding. try courts. It may also involve preventive deployment of troops. Fact-Finding. Formation of regional or subregional risk-reduction centers. as well as an understanding of developments and global trends based on sound analysis. the U. act swiftly to contain it and resolve its underlying causes. including the monitoring of regional arms agreements. Have to have standing. and sometimes may require demilitarized zones.
They can send a mission or a special envoy.burneylawfirm.N. There are lots of people willing to serve in this capacity. representatives. Mediation and negotiation are the U. The settlement of the civil war in El Salvador was assisted by joint OAS-U. The conflict in Somalia got help in conciliation efforts from the U. 99 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. The Arab League..’s methods here.N. His personal prestige and experience can encourage the parties to enter serious negotiations. You could also take your dispute to a regional organization which would facilitate a resolution of the dispute.N. mediators.International Law – a brief primer Nathaniel Burney Contact with member states should be maintained to keep up the flow of info. or the Secretary-General. CSCE (The Conference on Security and Cooperation in Europe). Peacemaking. others are still working on it. The mission’s presence alone may sometimes defuse a situation.N. the General Assembly. The individual is usually a distinguished statesman. OAU (Organization of African Unity). and the Organization of the Islamic Conference. Organizations which have had active roles: OEA/OAS (Organization of American States). Formal fact-finding can be mandated by the Security Counsel or by the General Assembly. Some of these organizations have good records here. NATO. ASEAN (The Association of South-East Asian States). the League of Arab States.com/international_law_primer. The conflicts in Yugoslavia have been dealt with by joint U.C. the OAU. Mediation and negotiation can be undertaken by an individual designated by the Security Counsel.-E.htm < Source Document .
” This is what happened in the Chamizal Tract case. Commission on International Trade Law). and bad faith on theirs. Arbitration can only reach one of two decisions. So there was never any resolution of the dispute under the treaty. These are not set under international law. has. An arbitration clause in a contract with a foreign state ensures that there will be a forum to adjudicate any dispute that may arise under the contract.S. and the Iron Curtain descended for 50 years. which said that arbitration would only happen after the representatives were chosen. These ground rules can be screwed up big time.R. and the U. So the Soviets never picked any representatives.htm < Source Document . Either X is right. then it is a “nullity.com/international_law_primer.burneylawfirm. A treaty between the U. so be careful.S. It was governed by the rules of UNCITRAL (the U. over regional organizations. What law will be applied. If you say so in an international agreement. but it still happened. Regional bodies sometimes have a conflict of interests. What the procedures will be.N. Examples of Arbitration Rules: The most active arbitration tribunal in the 1990s was the Iran-United States Claims Tribunal in the Hague. They often lack the experience that the U. after WWII contained an arbitration document. with jurisdiction over claims of the citizens of one country against the other state. What the scope of the decision will be.S. thus arbitration could never take place. Back to Table of Contents International Arbitration. or Y is right. You need to set down the ground rules first.N. you can have these same rules apply to the resolution of any disputes under the agreement. drafted by the United States. They often lack the resources that the U. has. What will be the means of determining the facts.N.N. More and more countries are signing on to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958. 100 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. If the arbitrator reaches a third decision. It was bad drafting on our part.International Law – a brief primer Nathaniel Burney Problems sometimes lead to the parties preferring the U.
International Law – a brief primer Nathaniel Burney
Such a clause will also ensure that any award rendered in such a dispute will be enforceable virtually anywhere in the world. In this respect, awards entitled to recognition and enforcement under the New York Convention enjoy more effective enforcement than other awards or judgments, including those of the International Court of Justice. Back to Table of Contents FORMAL ADJUDICATION — THE INTERNATIONAL COURT OF JUSTICE. The ICJ is an organ of the U.N., with 15 judges, sitting at The Hague. Every state that has signed on to the U.N. Charter has also agreed to the rules of the ICJ. That doesn’t mean they have assented to ICJ jurisdiction, only that they agree to its rules. ICJ decisions don’t bind any nations apart from the parties to the particular dispute. And they only bind those parties with regard to that particular dispute. However, some ICJ decisions are so well-reasoned that they get cited a lot as precedent and have become customary international law — binding international law. Only states have standing before the ICJ for a contentious case. Individuals and companies do not have standing. In addition to its dispute-resolution authority, the ICJ can also issue advisory opinions. Only specified international organizations, under U.N. Charter Article 96, can request advisory opinions. Of the 15 or so organizations so authorized, the most common requestors are the General Assembly and the Security Council. States cannot request advisory opinions. Advisory opinions are not binding on anybody. They may contain ideas, however, that go on to become customary international law and therefore become binding on everyone. The ICJ may have only heard 200 cases or so. But the mere threat of an ICJ case is often enough to reach a settlement. For a third party of any sort, including the ICJ, to issue a decision binding on a state, that state must have first consented to the third party’s jurisdiction. Thus, the ICJ only has jurisdiction if the party states consented to that jurisdiction.
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Consent can be express, or it can be implied, but the first thing you have to do is find out whether it has been given. There are only 3 ways for the ICJ to get compulsory jurisdiction. 1. State submits an “optional clause declaration.” State declares that it recognizes the court’s jurisdiction as compulsory in all legal disputes concerning: The interpretation of a treaty. Any question of international law. The existence of any fact which, if established, would constitute a breach of an international obligation. The nature or extent of the reparation to be made for the breach of an international obligation. These are reciprocal. When you submit this declaration, you’re saying “sue me and we go to the ICJ and submit to its decision, but only if I get to sue you too.” This is a common way for states to come within the ICJ’s jurisdiction. 60 states now have done this (about a third of the world), and all of the northern European countries do this. Examples. Declaration of Guinea-Bissau (1989): The Republic of Guinea-Bissau accepts as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the Court in all legal disputes referred to in Article 36, paragraph 2, of the Statute thereof. This declaration will remain in force until six months following the date on which the Government of Guinea-Bissea makes known its intention of terminating it. That’s beautiful, but not good enough for the United States. So we wrote at the end of ours (1946): This declaration shall remain in force for a period of five years and thereafter until the expiration of six months after notice may be given to terminate this declaration. That’s stupid. Many years later Reagan was confronted with Nicaraguan claims because we were mining their harbor. We tried to drop out of the ICJ, but four days later Nicaragua filed a declaration. We had actively imposed the 6-month period on ourselves, so we were subject to ICJ jurisdiction. Bad drafting. (We had been trying to lead the way and get other states to do the same thing, to avoid hit-and-run dropping jurisdiction
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(get jurisdiction to sue, then drop jurisdiction right after you win). The U.K. tried a different tack (1969). It accepts jurisdiction over all disputes except: Any dispute which the United Kingdom --has agreed with the other Party to Parties thereto to settle by some other method of peaceful settlement, or --has already submitted to arbitration by agreement with any State which had not at the time of submission accepted the compulsory jurisdiction of the ICJ; Disputes with the government of any other country which is a Member of the Commonwealth with regard to situations or facts existing before 1 January 1969; Disputes in respect of which any other Party to the dispute has accepted the compulsory jurisdiction of the ICJ only in relation to or for the purpose of the dispute; or where the acceptance of the Court’s compulsory jurisdiction on behalf of any other Party to the dispute was deposited or ratified less than twelve months prior to the filing of the application bringing the dispute before the Court. Oh, that’s clever. That’s what the U.S. tried to do, but this one works. India’s clause excludes “disputes relating to or connected with facts or situations of hostilities, armed conflicts, individual or collective actions taken in self-defense, resistance to aggression, fulfillment of obligations imposed by international bodies, and other similar or related acts, measures or situations in which India is, has been, or may in the future be involved.” So no dispute in Kashmir will ever be in front of the ICJ. . . that lawyer sure earned his fee! 2. You and the other state “refer” the dispute to the ICJ. This is just an ad hoc referral by the parties. This, too, is common. 3. The international agreement between the parties spells out that any disputes under the agreement will be decided by the ICJ. More and more international agreements say this. This also works if the primary settler decides you can appeal its decision to the ICJ.
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The ICJ held that there must be a risk of irreparable prejudice for it to issue an injunction. because of a critical failing in the pleadings: Whether or not there was an actual legal dispute.e.” i. Turkey) (1976). There was jurisdiction. Is there standing? Is the case moot? Even though the ICJ has jurisdiction. If reparations wouldn’t fix it. Meaningful local remedies must have been exhausted first. Case Concerning United States Diplomatic And Consular Staff in Tehran (United States v. Aegean Sea Continental Shelf Case (Greece v. The action must be necessary to preserve the issue before the court. there was no dispute any more. so that issue was never reached. Iran) (1979). irreparable injury would be hostage-taking and execution of Americans. Standing. The irreparable harm and injury was ongoing. Turkey was dropping explosives all over the continental shelf in the Aegean. then an injunction would be proper. Greece got upset. So it was moot. Note that France never admitted that they were violating international law. Here. issue an injunction to stop the Turks from continuing this action. Nuclear Tests Case (Australia v. the case may not be justiciable. but the ICJ couldn’t go to the merits. 104 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. We had to protect these Americans and return them. The case must involve a real legal dispute. trying to get seismic readings in search of oil. The standard for irreparable prejudice here was whether Turkey could make reparations for the damage if it was ultimately found to have been bad.International Law – a brief primer Nathaniel Burney Admissibility of the Case. Greece wanted the ICJ to “indicate interim measures.com/international_law_primer. Mootness.burneylawfirm. Here. France) (ICJ 1974).. because France had already come forward and said they would cease testing.htm < Source Document .
and Libya refused. Charter. it was supposed to go off over the ocean so no pieces would be found) we found out who did it by looking at the pieces. Instead. When the Security Council has taken action.N. The ICJ refused. Then they asked the ICJ to tell the Security Council to end the sanctions. the Security Council has imposed sanctions. then the ICJ will get involved. so we’ll try them ourselves. We still haven’t gone all the way to Chapter 7 collective use of force under the U. we can try them or we can extradite them. Libya said okay.burneylawfirm.International Law – a brief primer Nathaniel Burney ICJ and SECURITY COUNCIL ACTIONS.htm < Source Document . the ICJ will not interfere.) Back to Table of Contents 105 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. If the Security council is still debating though. Turkey dispute. which are still there. (That’s what happened in the Greece v. After Pan Am flight 103 was blown up over Lockerbie Scotland (the altimeter bomb went off sooner than planned because of a change in the flight.com/international_law_primer. The United States asked Libya to extradite the bad guys.
Any excuse for violence was all that was needed back then. The German interpreter and a remaining German soldier were interned. Before WWI. was established to resolve state-vs. It was to be entered into for the slightest provocation. After WWII.International Law – a brief primer Nathaniel Burney XIII. are examples. (There was no prohibition against the use of force. The carnage of WWI.htm < Source Document . After WWI the nations tried to get their act together. in response to a perceived offense. There is still a pall over the land as a result of this conflict. The arbitrators stated that the deaths of the German official and the two German officers were not the consequence of an act contrary to international law on the part of the Portuguese authorities. and the German official and two officers were killed. the U. In reprisal. After WWI. the question arose as to whether this had been an appropriate reprisal. acts of aggression came to be seen as the supreme crime. Most bloodshed nowadays is intramural ethnic cleansing or civil war. radio broadcasts.burneylawfirm. Following WWII. Acts which would not violate international law. Slapping an embargo on bananas.”) Retorsion — An unfriendly act by one state against another state. was no longer seen as the best of everything. was unbelievable. An arbitration panel was convened. even more so than from WWII. The sine qua non of the right to exercise reprisals is a motive furnished by a preliminary act contrary to international law. war was seen as the best of everything. in response to acts that may or may not have violated international law. it was “natural. German troops attacked and destroyed Portuguese forts and posts in Angola. military maneuvers. limiting the number of émigrés from that country. THE USE OF FORCE Unilateral use of force is important to understand. and a Portuguese officer seized the bridle of a German official’s horse. Up until World War I. which wiped out an entire European generation. Reprisal — A response that does violate international law. but it didn’t work. the German argument that the reprisals were justified would have been rejected anyway because reprisals are 106 MicroBook Special Reprint Reprinted with Permission Source Document > http://www.-state conflicts. Even had such an act happened. however. The Portuguese officer ordered his men to fire. War. not self-defense (there’s a big difference). a misunderstanding arose.com/international_law_primer. On October 19. there were 4 kinds of force where rules were established. Intro. a party of Germans had crossed into Angola to discuss with the Portuguese authorities the importation of food supplies into German Southwest Africa. and the German struck him while a German officer drew his pistol. etc. It was glorious. in reaction to an act that violated international law. embodying all other crimes. however.N. Due to an interpreter’s screwup. 1914. to be longed for. It’s actually done a really good job. mind you. An act of retaliation.
Charter. and to bring about by peaceful means.International Law – a brief primer Nathaniel Burney only permissible when they have been preceded by an unsatisfied demand. After WWI. The use of force would only be justified by necessity. and renounced it as an instrument of national policy in their relations with one another. . We say. and to that end: to take effective collective measures for the prevention and removal of threats to the peace.S. Self-Defense — This was the other option.” The first purpose of the U. Your response must be proportionate to the harm you suffered. The states signed the Kellogg-Briand Pact of 1928 — which is still in force today. This is not justified any more. and which Ribbentrop was accused of violating. nor do we say it’s okay for anybody else to do it. is to “maintain international peace and security. has never renounced its ability to conduct reprisals. The parties condemned recourse to war for the solution of international controversies. .N. This will probably be something that must be dealt with. and for which he went to the gallows. You must have made a demand which was not complied with. We never do it. Intervention — State intervenes in the affairs of another state. the League of Nations was established to ensure safety. under the U. See below. . United Nations Charter (1945). Self-defense lives on. and for the suppression of acts of aggression or other breaches of the peace. so be sure to go through the analysis. that we will respond in kind to a nuclear attack. therefore: There must have been a violation of international law.htm < Source Document . but we’ve kept the option open. The first words are: “We the peoples of the United Nations determined to save succeeding generations from the scourge of war. The use of force was prohibited.burneylawfirm.com/international_law_primer. Reprisals totally out of proportion with the act motivating them would be illegal. for example. and in conformity with the principles of justice 107 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. This is the treaty which was used at Nuremburg. By the way. Three requirements. the U. which twice in our lifetime has brought untold sorrow to mankind .N.
The action of a state in allowing its territory. They were unsure as to whether that would count as an act of aggression on our part.com/international_law_primer. then anything not on the list might not count. You’re just as guilty as if you sent your own army to do it. Didn’t want to leave an opening for aggressors. however. The use of armed forces of one state which are within the territory of another state with the agreement of the receiving state. or mercenaries. It may be an armed attack when you send in armed bands or mercenaries to stage an attack. which carry out acts of armed force against another state of such gravity as to amount to the acts listed above. Bombardment by the armed forces of a state against the territory of another state or the use of any weapons by a state against the territory of another state. but only if you sent them in such a way that their actions were directed and controlled by you. which it has placed at the disposal of another state.” “Acts of aggression” isn’t defined anywhere in the Charter. adjustment or settlement of international disputes or situations which might lead to a breach of the peace. marine and air fleets of another state. The blockade of the ports or coasts of a state by the armed forces of another state. resulting from such an invasion or attack. or any military occupation.International Law – a brief primer Nathaniel Burney and international law. has not found favor as an act of aggression here. Indirect aggression. or any annexation by the use of force of the territory of another state or part thereof. or air forces. If they made a list of things that are aggression. General Assembly Resolution 3314 (1974) — Everybody agrees that aggression includes: The invasion or attack by the armed forces of a state of the territory of another state.burneylawfirm. 108 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. to be used by that other state for perpetrating an act of aggression against a third state. or its substantial involvement therein. irregulars. groups. This is why nobody would let us fly over their territory en route to bombing the shit out of Muammar Khaddafi. sea. They left it undefined on purpose. The sending by or on behalf of a state of armed bands. in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement. An attack by the armed forces of a state on the land. however temporary.htm < Source Document .
and the Security Council may determine that other acts constitute aggression under the provisions of the Charter. Troops are piling up on the other side of the border. Back to Table of Contents SELF-DEFENSE. and preemptive self-defense under customary international law.N. Not everything counts as a use of force. Back to Table of Contents Analysis for All Use of Force Questions: Did the states try to resolve it peacefully? Did they abide by the U.N.N. It may still be illegal. leaflet-dropping..htm < Source Document . You can’t do anything in self defense. Does that mean an armed attack must have occurred against your country? No. was it self-defense? Or was it collective action? Two kinds of self-defense: U. The other side may be engaging in an illegal use of force. Charter. strike.burneylawfirm. This is not an exhaustive list. An armed attack is not a mere threat of force. etc. but it isn’t use of force. No matter what the reason for your use of force. Article 51 — Nothing in the U. Charter self defense. the collective use of force provisions of the Charter permit states to aid other states in defending themselves against aggression. radio broadcasts. Ideological acts. then the force was illegal. nor do all acts of aggression count. was it necessary? Unless you can prove a pre-existing customary norm of international law permits it. Is it a preliminary to an imminent attack? If so.com/international_law_primer. Charter is to be construed so as to impair the inherent right (preexisting the U. but it may still not be an armed attack. Charter? If they did resort to the use of force. 109 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. wait.N.International Law – a brief primer Nathaniel Burney Merely giving them the arms and the cash and the training isn’t enough. It is a fundamental norm of international law that you do not have the right to engage in acts of aggression or in unlawful use of force.N. If not self-defense or a collective action under the Charter. you can only unilaterally use force under the U.) of self defense against armed attack. don’t count. But if it is just an exercise.
Charter. killed everyone on board. This ended up with the little country being picked on telling the British in 1842: “The President sees with pleasure that your Lordship fully admits those great principles of public law. set the ship completely aflame.” As a result of this action. We were always trying to take over parts of Canada afterwards. and sent it over Niagara Falls. Gotta be necessary. and leaving no choice of means. which this government has expressed. respect for the inviolable character of the territory of independent states is the most essential foundation of civilization. And while it is admitted on both sides that there are exceptions to this rule. they only said “targets were set alight. he is gratified to find that your Lordship admits that such exceptions must come within the limitations stated and the terms used in a former communication from this department to the British plenipotentiary here. Undoubtedly it is just.” see the Nicaragua case below. you may use force to repel them and stop it. applicable to cases of this kind. but customary international law). And Canada was the big power then. those exceptions should be confined to cases in which the ‘necessity of that selfdefense is instant.’” The necessity must be immediate. You must immediately report this to the Security Council. we were small fry. Hearing of a planned United States incursion across the border. When the British blew something up and killed a bunch of people. The necessity must be overwhelming. and no moment of deliberation.S. You must promptly report your response actions to the Security Council. while it is admitted that exceptions growing out of the great law of self-defense do exist. Gotta be proportionate. and his British counterpart Lord Ashburton. we say we blew it up and killed people.burneylawfirm. the U. overwhelming. The Caroline (1906) — Most famous case in international law — Preemptive self-defense (not in the U.com/international_law_primer.International Law – a brief primer Nathaniel Burney For more on what counts as an “armed attack. The result of the war was a continuing hostility between us and them for many years.N. the Canadians crossed first. had an ongoing correspondence about what constituted self-defense. as in Desert Storm.S. Side note — When the U. that. Secretary of State. We had a bunch of nasty battles with Canada in the War of 1812. and the border between Lake Erie and Lake Ontario was heavily militarized. grabbed the ship The Caroline. It’s not the same as an act of aggression. Definitely a charged atmosphere.htm < Source Document . 110 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. as on ours. If you’re subject to an armed attack. and that on your part. You have to state that you are under an armed attack. blows something up. Daniel Webster.
Back to Table of Contents Non-Charter Uses of Force that are Permitted by Customary International Law. had been well-educated in international law) who stood up and cited the Caroline case. In the Cuban Missile Crisis. under hardened shelters. There must be no time to deliberate. 111 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. You go into another country with your armed forces to get your nationals and get out. and can count how many levels it’s gone down before exploding at the right one. shot them and filmed it. that also led to lengthy discussions of whether the standards for preemptive self-defense attacks had been met. Here. The criteria listed are the criteria that get cited. Of course. the act had been done by then. on the question of whether anticipatory self-defense is proper. and blamed it on Poland. leaving no choice of means. The Nazis went out of their way to make it look like Poland had started it. and it was representatives from Ghana (who. The Nuremburg tribunal. burning the ship. Retrieving your nationals. so as to justify their invasion.. (This comes from an earlier letter. but it is less intrusive than other kinds.com/international_law_primer. however. did not buy it. they come up with something to stop it. unlike ours.International Law – a brief primer Nathaniel Burney There must be no other choice. and sending it over the falls was not proportional.N.htm < Source Document . Preemptive self-defense. The United States proposed this in the U.burneylawfirm. Every time we come up with a cool bomb that can punch through layer after layer. A blockade is a use of force. killing everyone. overwhelming. the United States went out of its way to say its actions were not self-defense. throughout history. and no moment for deliberation?” When the Israelis bombed Iraq’s nuclear reactor in 1981 (because it could have been capable of making weapons-grade plutonium). One side effect of this was for Iraq to put its reactors underground. asking “is this emergency instant. See above. It should also be proportional. They even dressed up Polish prisoners in German uniforms. but merely a quarantine of Cuba on the high seas to keep the missiles out.) This case keeps coming up over and over.
but neither was it universally condemned. Unilateral intervention for humanitarian purposes is not much supported. That’s different from looking at another country. Prior to 9/11.burneylawfirm. This can be troublesome when you go in to extract your nationals and wind up changing the government. That’s what the U. Don’t go blasting everything. This is especially true now that the U. Back to Table of Contents INTERVENTION.S. The response must be proportionate. taking over. etc.com/international_law_primer. just the terrorist stuff. Intervention Against Terrorism. The response must be calculated to solve the particular terrorism problem. The multilateral stuff is okay. if they are widespread humanitarian problems.International Law – a brief primer Nathaniel Burney This is usually done unilaterally. setting up a continuing military presence. like we did in Panama and Grenada). It violates sovereignty. and Grenada/ Panama.” and going over to help them get it. was set up to prevent. It’s hard to attribute terrorist acts to a state.htm < Source Document . they took out the entire Ugandan air force on the ground. (you know.S. It was a similar situation to the U. The response must be narrowly tailored to its purpose. and they similarly got lukewarm support for their actions. saying “they need our kind of government over there. strike against Libya after the Libya-sponsored bombing of a German disco where American servicemen were killed. there was one case where this has happened — the U. Intervention to clean up the other guy’s system is just bad. If they only killed one of yours. Israel had some people in trouble in Uganda. don’t go blowing up cities. Charter.N. sets up multilateral collective intervention even for internal problems.N. This attack was not well-received. The use of your armed forces can only be for the exclusive. remember? Intervention to Effect Changes. and it’s not part of the U. but everybody supports it. 112 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. Before they extracted them. narrowly-tailored purpose of pulling out your nationals. Humanitarian Intervention.N.
however.S. training rebels at Camp Perry (the CIA training camp that we don’t admit exists). Previous rules of international law may make you a belligerent. Especially now that most fighting is intramural civil strife and ethnic cleansing. However.com/international_law_primer.] Had Ollie North consulted anybody. 113 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. Can’t do this even if you were requested to do so. The United States’ sole justification for its action was collective self-defense under Article 51. he would have known that mining the harbor and not telling anyone is a big-time violation of international law. The U. (4) Illegal uses of force which justified an Article 51 self-defense response. there was some real tension. The U.burneylawfirm. however. was displeased with the Sandinistas until they were voted out (in the first free election).S. as well as the actual outcome. though. United States) (ICJ 1986). The United States still disputes the facts in this case. the ICJ didn’t say whether states have a right to intervene on behalf of the ruling government. It didn’t prohibit it.htm < Source Document . was alleged to have assisted the revolution.) This whole area is unresolved. also one of the reasons why England stayed out of our Civil War. We were accused of unauthorized overflights. Do states have the right to intervene when the rebels invite them? When either side invites them? In the Nicaragua case (below). and the U. (A big reason why France waited until there was a colonial victory before aiding us against England in our revolution and they still came in too soon.International Law – a brief primer Nathaniel Burney Intervention in Civil Wars. Until then. who were alleged to have committed acts of destruction against Honduras and Costa Rica. Older rule was similar. but we do like much of the legal holding. the ICJ did specifically state that you cannot intervene in other countries’ civil wars on behalf of the opposition. The Contras were trying to revolt.S. What about intervening on behalf of the rebels? See above.S. and we are now citing big parts of it in other cases (such as the right to as many weapons as you want).R. (3) Illegal uses of force. As are unauthorized overflights. so we need another ICJ decision. mining the harbor. (2) Illegal interventions. and Cuba were accused of assisting the Sandinistas. Back to Table of Contents Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. [Four categories of violations: (1) Violations of sovereignty.
and again presuming the participation of the Nicaraguan government. and training to the Contras count as an armed attack by the United States against Nicaragua? No. Merely giving them the arms and the cash and the training isn’t enough.burneylawfirm. they were under attack.htm < Source Document . you must state that you are under an armed attack. To make an armed response in self-defense under Article 51. equipment. So the only version of the facts that the ICJ had to work with was Nicaragua’s version. Did supplying arms. its shipments to El Salvador. it might have been use of force. Even presuming that the supply of arms to the opposition in El Salvador could be treated as imputable to the government of Nicaragua. So even though Nicaragua may have been guilty of odious violations of international law. and its attacks on Costa Rica were not regarded as armed attacks for Article 51 purposes. Thus. You must immediately report this fact to the Security Council.’s actions. The U. none of these states announced that they were victims of armed attacks. we disputed the ICJ’s jurisdiction. might be violations of international law. 114 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. but it wasn’t an armed attack for self-defense purposes. the ICJ had to find an armed attack by Nicaragua against Honduras or Costa Rica. Even at a time when the arms flow was at its peak. And you must also promptly report your own actions in response. in order to justify the U. So its attacks on Honduras.International Law – a brief primer Nathaniel Burney The court held that there is no such thing as a right of “collective” armed response to acts which do not constitute an “armed attack. to justify invocation of the right of collective self-defense in customary international law. but they are not armed attacks justifying self-defense. and they might be uses of force.S.N. that would still not constitute an armed attack. as well as the Nicaraguan support of El Salvadorian rebels. the provision of arms to the opposition in another state constitutes an armed attack on that state. Nobody ever asked the United States to come help them. The ICJ was unable to consider that. Nobody ever told the U. The United States support of the Contras. Here. So. absent an armed attack there was no right of collective self-defense. but only if you sent them in such a way that their actions were directed and controlled by you. so we didn’t even send a lawyer to argue for us. in customary international law.” States do have a right of collective self-defense only if they are under armed attack. It may be an armed attack when you send in armed bands or mercenaries to stage an attack. It might have been illegal intervention. because we didn’t argue the case! That’s right. it would have to be equated with an armed attack by Nicaragua on El Salvador.com/international_law_primer. the ICJ never saw the photos.S. had difficulty establishing this. never saw any of the evidence of Nicaragua’s armed attacks. but it isn’t use of force. It may still be illegal.
without enough armor and support to protect those who were there. This is not a new standard. Supplying weapons might have been use of force. No necessity. Like in Somalia. and we said “put it in writing first. .htm < Source Document .burneylawfirm. the use of force must be necessary. So when Iraq invaded Kuwait. 115 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. Nicaragua claimed that it was the victim of “indirect aggression” (namely. and our military maneuvers in Honduras). If you say you’re using force against another country. the American habit of pulling out emboldened Al Qaeda and others to more numerous and harmful attacks on American interests. where we took out most of our forces and left just a few there to make the political statement that we’re still there. Iraqi gunners are shooting at you. Neither the embargo nor giving money to the Contras were uses of force.. All uses of force must be proportional. If you don’t want to trade with someone. To do so.International Law – a brief primer Nathaniel Burney The United States did not obey international law here. Now.” An immediate record was established before the Security Council. There was no necessity. but economic measures of intervention were not a violation of international law. so the United States had failed to abide by this standard. Kuwait and Saudi Arabia begged us to intervene. as well.N. prohibiting other countries from trading with a state might be a problem. If a particular act was not necessary. . however. The ICJ held that the maneuvers were not use of force. you do not take out a dam upriver and drown a million people. We have learned our lesson. our support of the Contras. culminating in 9/11. Ask this for every particular act. that’s fine. It’s always when we do things halfway that Americans get killed. Back to Table of Contents NECESSITY AND PROPORTIONALITY. the embargo. too. You need to destroy them. Honduras has nevertheless already crushed the rebellion a year or so earlier.com/international_law_primer. then it was illegal. that we were formally invited down there. It’s been around at least since the Caroline case. no matter what the reason. Even presuming that Nicaragua engaged in armed attacks on Honduras and Costa Rica. and that we had notified the U. As has been noted by the terrorists themselves. and even it said this is nothing new.
the warm fuzzy idea that sending Americans somewhere will somehow make things better. Noriega gave a highly inflammatory anti-American speech. physically abused.000 American soldiers killed in all.burneylawfirm. .htm < Source Document .S. Need: Declaration of War by the U. This is still law. the US had about 500 KIA.] The deployment of U. [.S. Back to Table of Contents WAR POWERS RESOLUTION.International Law – a brief primer Nathaniel Burney It’s the half-hearted stuff. George Bush sent a communication to the Speaker of the House detailing the justification for the invasion of Panama: On December 15. and that the continued safe operation of the Panama Canal and the integrity of the Canal Treaties would be in serious jeopardy if such lawlessness were allowed to continue. These and other events over the past two years have made it clear that the lives and welfare of American citizens in Panama were increasingly at risk. During the period from 1979 through the late 1990s.S. territory or on our armed forces. The only times we’ve done so were in the Nicaragua case. These acts of violence are directly attributable to Noriega’s dictatorship. Specific statutes authorizing the use of our forces. at the instigation of Manuel Noriega. from jeeps turning over to any other reason. which we lost. 116 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. [.) Manuel Noriega made a big mistake by declaring war on the United States. Congress. . 1989. At the same time. Naval officer and unlawfully detained. forces to any activity. or just international peacekeeping. On December 16. 1989. A series of vicious and brutal acts directed at U. (During that same time. the illegitimate Panamanian National Assembly declared that a state of war existed between the Republic of Panama and the United States.S. Marine officer was killed without justification by Panama Defense Forces (PDF) personnel. however.S. Forces is an exercise of the right of self-defense recognized in Article 51 of the United Nations Charter and was necessary to protect American lives in imminent danger and to fulfill our responsibilities under the Panama Canal Treaties. We rarely do so under Article 51. Had he not declared war.S.com/international_law_primer. there were about 15. a U. that gets people killed. personnel and dependents followed these events. and the bombing of Libya. Other elements of the PDF beat a U. This resolution governs the commitment of U. be it the use of force. a lot of s*** might not have hit that fan. . which created a climate of aggression that places American lives and interests in peril.] We did not actually invoke self-defense. .S. and threatened the officer’s wife. Actual national emergency created by an attack on U.
after four months of bitter opposition from lawyers and the judiciary in Pakistan. to stifle criticism. One commonlyunderstood example is the use of “human shields” — the placement of civilians at military targets to deter attack with the fear that the death of innocents would be ruled unlawful. and to gain sympathy while painting the rule-of-law countries as evil. Charles Dunlap. War is the last thing you want to get involved in. Groups also use the rule-of-law countries’ own courts to stifle the dissemination of information that would hurt their objectives. § 1544(b). because we were facing a battle-hardened army. at least in the court of public perception. suspending the nation’s constitution. "LAWFARE" The term "lawfare" was coined by Maj. So how did the U. to either achieve a military objective or to deny an objective to the enemy. Gen. The tension between Congress and the President on declaring war is a healthy tension. Deputy Judge Advocate General for the United States Air Force. who had taken over even civilized resort areas of the country. but it also always says the report is “consistent” with the W. not that it is “in compliance” with it.International Law – a brief primer Nathaniel Burney Before 9/11.S. Back to Table of Contents COLLECTIVE USE OF FORCE. If President doesn’t withdraw first. the fourth-largest in the world. not welfare. The “-fare” suffix is meant to imply warfare. IN PROGRESS. Pervez Musharraf declared a state of emergency in late 2007. and the 60-day period doesn’t start to run until the letter is sent to Congress. with mintcondition Soviet equipment. blacking out the media.TO BE COMPLETED. It is most commonly used in asymmetrical warfare. if not with the term itself. The letter always comes within 48 hours.R. It is used by governments as well. and arresting many. The lawyers and judges had been sharply criticizing him for failing to control the terrorists.. none of these things had happened. do everything it did? § 1543 — The President has to submit a report within 48 hours of action. Bush did ask for Congressional support of the intervention against Iraq in 1991. 117 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. For example. then he has 60 days to get Congress’ consent or else he must then withdraw the forces. and the letter isn’t always required.. Only have to leave after 60 days. perception is the key to lawfare.burneylawfirm. Much as with propaganda. Musharraf acted to preserve his control of the country. Lawfare tends to be used as a weapon against countries and societies where the rule of law is strong. by guerrillas and terrorists who seek to affect public perception abroad and gain a moral advantage. Most people are familiar with the concept.htm < Source Document .P.com/international_law_primer. The word simply refers to the use of law and legal process as a weapon in modern warfare.
Musharraf’s aide later confirmed to international lawyer Scott Horton that this message was intended for the U. To prevent the killing of non-combatants in a fluid enemy compound.com/international_law_primer. however. blaming the lawyers of being on the side of the terrorists. “Proportionality” is an international law concept that simply prohibits superfluous suffering.” for example. The meaning of words can be manipulated. and that the application of law to military matters is a bad thing that hamstrings commanders in the field. Despite the widespread use of lawfare in asymmetrical conflicts going back at least as far as the Vietnam Conflict. This takes advantage of the fact that the citizens of rule-of-law countries have a sense of justice and fair play that can be manipulated to achieve enemy ends. Words have meaning. lawfare is waged by those from societies without a strong rule of law. and use it effectively themselves. the ploy did not work. to say a military should not use more effective weapons than those used by the enemy. Terms of art such as “proportionality. and those who wage lawfare are careful to use or release certain words. terrorists and their backers are already using it with some degree of success. Typically. It might be wiser for such critics to take it into account.htm < Source Document . you don’t drown a million people to take out a machine gun emplacement.S.burneylawfirm.S. for example. western military commanders have only recently begun to accept the grim reality that they must bring lawyers with them to the battle. without any chance for review. to be sure — in the hopes of affecting Western opinion. The fact of the matter is that lawfare is out there. and without any do-overs — military lawyers must have an understanding of how military operations work. government. their own governments and militaries are unwilling or unable to change this. Al Qaeda trains its people to claim “torture” if captured. and citing principles of “preserving the union” and the precedent of Abraham Lincoln’s suspension of Habeas corpus during the Civil War. 118 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. rather than wish it didn’t exist. but it doesn’t want the enemy to escape because of that. Ultimately. it happens.S. Guerrillas. Too often. Before they can give useful advice to commanders — usually in real time. Musharraf switched to English and made an appeal to American ears.International Law – a brief primer Nathaniel Burney During his speech declaring martial law. But it was a clear attempt to appeal to law — mis-stating it and mis-applying it. It is not inherently good or bad. because of the effect of such a claim on westerners. against those who do have a strong rule of law. are commonly used improperly to make western forces appear to be acting unlawfully when in fact they were not. to ensure that the U. and Musharraf stepped down. knowing that lawyers are not well-regarded in the U. As described above. The concept is often mis-used by those who claim that there is too much law. would continue to support him. How you kill an enemy fighter is not the issue. The military wants to avoid killing the wrong people. it’s whether you’re killing far too many other people to take him out. they need to know how minute fusing changes can affect the destruction caused by a particular bomb. It is commonly mis-used.
the word “jihadist” has strong connotations of goodness and proper behavior.) A lawfare battle will be lost by ceding the ground to the enemy. Typically. Calling someone a jihadist confers on them real religious legitimacy. especially information prejudicial to their interests.International Law – a brief primer Nathaniel Burney It is also mis-used to say collateral damage is per se illegal. Collateral damage is an expected an unavoidable consequence of warfare. they often simply capitulate. and avoiding it at all costs is a losing proposition. the local sheikhs and tribal leaders in Iraq began using the word “mufsidun” when describing terrorism. giving an advantage to the enemy. when a defendant decides to defend itself. This explains the common use of human shields and hiding military personnel and equipment among civilian women and children. are those whose societal standards open them up to criticism when it does happen. “Legal Jihad” or “Soft Jihad” is an example of the practice of using the courts of a rule-of-law enemy to achieve military objectives against that enemy. make an apology and retract the “offending” materials. so you’re only reacting to the enemy’s legal ploys or inaccurate reporting. it is the use of western law to subvert western legal principles such as free speech and civil rights. and generally began acting like terrorism was wrong and bad. So to make the cases go away.htm < Source Document .) It can be extremely effective. (This is one of the few actual examples of the U. for the purpose of making rule-of-law forces appear to be the “bad guys. Their people began opposing and punishing terrorist behavior. such as unity of effort and the principle of the offensive. Terrorists and their supporters use western courts as a battleground to attack the free flow of information. when the plaintiffs would be required 119 MicroBook Special Reprint Reprinted with Permission Source Document > http://www.com/international_law_primer. “Jihadist. The battlefield is real.burneylawfirm. this single conceptual change was considered the biggest change on the ground in 2008. of course. these actions tend to be withdrawn during the discovery phase. itself successfully using lawfare in that conflict. and individuals often cannot afford the expense of defending such actions. If you stay on the defensive. Those who aim to minimize it.” which means “evildoer. even if the underlying claims are meritless.” You can mis-use words yourself. with real results. Typically. (Essentially.” In 2008. then you are losing. because publishers and corporations want to avoid the expense and bad publicity of such cases. and the stakes are the high as any other. If you let the enemy control the terms or the message. but dramatically distort the legal meaning. In Islam. is the wrong word to use when attacking islamist terrorists.S.” for example. These uses of the word fit its colloquial meaning of the word. lawsuits are filed to silence and punish legitimate criticism. The proper word to use would be “mufsidun. or by ignoring the other commonly-understood principles of war. and even objective reporting and neutral commentary. Even with the significant progress under the military’s “surge” strategy. and in hospitals and schools. you are losing.
and Europe. but more likely to result in a win for the soft jihadists. was give another forum to its enemies to wage lawfare against it. Waterman S. This litigation is as much a battleground for lawfare as any other. not take them away. Some further object that judges and courts can only increase civil rights. in an attempt to stay on the right side of public perception. and there are deep divisions over whether it should even be happening. nor possessed of the expertise required to make such decisions. Meritless though they may be. make lawsuits there not only more common. This supports the common belief that such actions are brought as a kind of extortion or intimidation. The U. There is an even greater effect outside the U. so at least the judges don’t have to re-invent the wheel every time a wiretap application comes in. 103.S. and even criminalization of causing offense.W. The courts are also used to litigate military detention. and lack the expertise to know what to do with such information even if they had it.com/international_law_primer. Bush administration.S. under the G. these actions have a significant chilling effect on free speech. But there has long been a recognition that the courts should stay out of policy and military decisionmaking. Hate-speech laws. for example. the U.burneylawfirm. journals. The FISA court tries to address that by channeling intel surveillance matters to one court. Supreme Court held in Chicago & Southern Air Lines v.S.S. Even the U.S. Corp. as judges are neither beholden to the voters for the consequences of such decisions. the preferred method of dispute resolution in the U. where they don’t have the same free-speech protections. and can only get more rights as time goes on.htm < Source Document . liberal libel laws. All it did. Back to Table of Contents 120 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. passes resolutions banning criticism of Islam (62/145.International Law – a brief primer Nathaniel Burney to disclose information supporting their claims.N. Litigation is. passed in 2007 and 2008). There has been a wave of self-censorship in the media and publishing worlds in recent years. however.K. So. in 1948 the U. that the courts cannot review Executive intelligence actions — the courts do not (and should not) have access to the secret information underlying such actions. of course. they are granted rights they did not have before.S. So by allowing the courts to review claims of wartime prisoners. 111. in the courts of Canada. government. actually took the lead in increasing this court involvement.. Books. even video games are unilaterally pulled from the market to avoid litigation. 333 U.
Nobody enforced the original plan of regulating the borders. For a brief period after independence.htm < Source Document . The result was three increasingly purged states.burneylawfirm. So the borders were crazy. but then the ethnic cleansing began. because you would be jailed until the culprit was caught and convicted. for example.com/international_law_primer. the border agreement was there. a Croat.   Visitors to Saudi Arabia in the 1970s and 80s. with the Serbs scattered all over and a hodgepodge of peoples everywhere. were repeatedly warned never to report a crime. This information is not intended as nor does it constitute legal advice. Your use of this information does not create an attorney-client relationship. 121 MicroBook Special Reprint Reprinted with Permission Source Document > http://www. and resulting in the Dayton accord with different borders based on the intervening battles. Text Copyright © 2007-2011 Nathaniel Burney This document has been prepared for informational purposes only. didn’t like the Serbs.International Law – a brief primer Nathaniel Burney NOTES But Tito.
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